United States District Court, E.D. Wisconsin
ESTATE OF MARK RICHARDSON, by its Special Administrator Justin Richardson, Plaintiff,
CORRECTIONAL HEALTHCARE COMPANIES, INC., NAUTILUS INSURANCE COMPANY, JOY HAUBRICH, and JANE SEITZ, Defendants.
Stadtmueller U.S. District Judge
3, 2016, the defendants filed a motion for summary judgment
along with a supporting memorandum, statement of facts, and
an affidavit of counsel with various attached exhibits
thereto. (Motion, Docket #26; Memorandum in
Support, Docket #27; Statement of Fact, Docket #28;
Declaration of Steven T. Elmer, Docket #34 with Exhibits
1-6). On June 30, 2016, the plaintiff Estate of Mark
Richardson (“Richardson” or the
“Estate”) timely filed a response in opposition to
the motion, along with a response to the defendants’
statement of facts, an additional statement of facts,
affidavits of expert witnesses, and an affidavit of counsel
with various exhibits attached thereto. (Response, Docket
#36; Response to Statement of Facts (“RSOF”),
Docket #39; Additional Statement of Facts, Docket #40;
Declaration of Travis Webb, Docket #37; Affidavit of Suzanne
L. Ward, Docket #38; Declaration of Thomas C. Lenz, Docket
#41 with Exhibits 1-39). On July 14, 2016, the defendants
filed a reply in support of their motion, along with a
response to Richardson’s statement of facts, a reply in
support of their own statement of facts, and additional
affidavits of counsel with attached exhibits. (Reply, Docket
#44; Response to Additional Statement of Facts
(“RASOF”), Docket #46; Reply to Response to
Statement of Facts (“RRSOF”), Docket #47;
Declaration of Steven T. Elmer, Docket #45 with Exhibits 1-3;
duplicate Declaration with additional exhibits, Docket #49
with Exhibits 1-3). The motion is fully briefed and, for the
reasons explained below, it will be denied in its entirety.
STANDARD OF REVIEW
Rule of Civil Procedure 56 provides the mechanism for seeking
summary judgment. Rule 56 states that the “court shall
grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed.R.Civ.P.
56(a); see Boss v. Castro, 816 F.3d 910, 916 (7th
Cir. 2016). A “genuine” dispute of material fact
is created when “the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). The Court construes all facts and reasonable
inferences in a light most favorable to the non-movant.
Bridge v. New Holland Logansport, Inc., 815 F.3d
356, 360 (7th Cir. 2016). In assessing the parties’
proposed facts, the Court must not weigh the evidence or
determine witness credibility; the Seventh Circuit instructs
that “we leave those tasks to factfinders.”
Berry v. Chicago Transit Authority, 618 F.3d 688,
691 (7th Cir. 2010). It is important to note that internal
inconsistencies in a witness’ testimony “create
an issue of credibility as to which part of the testimony
should be given the greatest weight if credited at
all.” Bank of Illinois v. Allied Signal Safety
Restraint Systems, 75 F.3d 1162, 1170 (7th Cir. 1996)
(quoting Tippens v. Celotex Corp., 805 F.2d 949, 953
(11th Cir. 1986)). The non-movant “need not match the
movant witness for witness, nor persuade the court that
[their] case is convincing, [they] need only come forward
with appropriate evidence demonstrating that there is a
pending dispute of material fact.” Waldridge v.
American Hoechst Corp., 24 F.3d 918, 921 (7th Cir.
Court will provide a timeline of events, as well as other
relevant factual topics, noting the parties’
disagreement where appropriate. In accordance with the
standard of review, the facts and inferences therefrom are
construed in Richardson’s favor.
Richardson’s Medical History
2012, Richardson was incarcerated at the Racine County Jail
(the “Jail”). RSOF ¶ 3. Prior to his
incarceration, Richardson was diagnosed with numerous medical
issues. RRSOF ¶ 6. These included liver cirrhosis,
diabetes, coronary artery disease, and multiple sclerosis.
RRSOF ¶ 6. The parties disagree on the nature of
Richardson’s splenomegaly (spleen enlargement). The
defendants claim that Richardson’s spleen was
chronically enlarged, while Richardson asserts that it was
the result of acute trauma. RRSOF ¶ 6. Richardson took
medication for some of these ailments; the parties dispute
which ailments were medicated. RSOF ¶ 7.
reported various injuries prior to October 12, 2012. On
September 28, 2012, Richardson reported to Seitz that he had
been kicked in the side. RASOF ¶ 1. She took his blood
pressure but did not document the interaction, despite
recognizing that doing so was important. RASOF ¶ 1. On
October 3, 2012, Richardson reported that he had fallen three
times in the past few days. RASOF ¶ 2.
Night of October 12, 2012, and Morning of October 13, 2012
3.2.1 Haubrich’s 10:00 p.m. Visit
approximately 10:00 p.m., Haubrich was working the evening
shift when she was called to the cell block where Richardson
was housed. RRSOF ¶ 11; RASOF ¶ 3. She responded
within five minutes. RASOF ¶ 4. Her testimony is
conflicted as to whether she believed the situation was an
emergency, or was merely told so by jail staff. RASOF ¶
4. When she arrived there, Richardson was seated on a toilet
in the cell block bathroom with a number of correctional
officers present. RSOF ¶ 12. Haubrich waited for jail
staff to get him off of the toilet before she entered. RSOF
¶ 12. Prior to entering, Officer Todd Kosterman
(“Kosterman”) told Haubrich that Richardson
complained of dizziness, seeing spots, pain in his stomach
and chest, and difficulty walking and breathing. RRSOF ¶
13; RASOF ¶ 5.
then entered the bathroom, and Richardson recounted the
symptoms relayed by Kosterman. RASOF ¶ 6. Richardson
also mentioned that he had liver problems. RASOF ¶ 11.
Haubrich did not see Richardson’s skin tone, but
Kosterman observed that it was yellowish. RASOF ¶ 7.
Richardson needed assistance to stand and had difficulty
walking. RASOF ¶ 7. Haubrich contradicts herself as to
whether she asked Richardson about pain, but she and
Kosterman observed him apparently in pain and hunched over.
RASOF ¶ 9-10. He was not sweating or out of breath and
was otherwise polite with Haubrich. RSOF ¶ 14; RASOF
¶ 11. Officer Connie Taylor (“Taylor”) was
also present and observed Richardson’s yellowish skin
tone, which was different than it had been earlier, and that
he looked weak and ill. RASOF ¶ 8. Taylor later noted in
the activity log that Richardson “was feeling dizzy,
seen [sic] spots and found it hard to breath”
and that “his stomach hurt through his chest.”
RASOF ¶ 14.
did not take Richardson’s vital signs or otherwise
perform a nursing assessment. RASOF ¶¶ 12, 19.
Knowing that Richardson was diabetic, Haubrich suspected that
he had either low blood sugar or mere indigestion. RSOF
¶ 15; RASOF ¶ 5. When his blood sugar test was
normal, Haubrich determined that Richardson needed further
assessment. RSOF ¶¶ 16-17; RASOF ¶ 12. She did
not have with her the equipment to take his vital signs, so
Haubrich directed the officers to place him in a medical
observation cell. RSOF ¶ 18; RASOF ¶ 19,
She did not give the officers instructions on what to watch
for with Richardson’s condition. RASOF ¶ 21.
Richardson did not appear able to walk, so Haubrich requested
a wheelchair. RASOF ¶ 22.
did not document her interaction with Richardson, despite the
fact that CHC policy required it and that she knew that she
should have done so. RASOF ¶ 13. Haubrich did not give
Richardson any medication or other treatment to relieve his
pain and dizziness. RASOF ¶ 18. She did not call an
on-call doctor regarding Richardson’s condition, but
the parties dispute whether this was required by CHC policy.
RASOF ¶ 20. Though Haubrich never performed a nursing
assessment on Richardson, she believed one was necessary.
RASOF ¶ 25.
The Nurses’ 11:00 p.m. Meeting
directing the jail staff to take Richardson to observation,
Haubrich left to finish passing medication to the other
inmates. RRSOF ¶ 19; RASOF ¶ 23. She believed this
would only take ten to fifteen minutes. RRSOF ¶ 19.
Haubrich returned to the medical office at 11:00 p.m., where
she met Seitz. RRSOF ¶¶ 19-20; RASOF ¶ 24.
parties again disagree on Haubrich’s assessment of
Richardson’s situation as an “emergency.”
Richardson points to Haubrich’s testimony that she
believed he needed further assessment before declaring it an
emergency. RASOF ¶ 26. The defendants cite to her
testimony immediately prior where she agreed that Richardson
was not having an emergency which required immediate
hospitalization. RASOF ¶ 26. Nevertheless, Haubrich knew
that Richardson could remain in pain until he was seen again
by her or another provider. RASOF ¶ 27. She at least
thought that Richardson’s statements were truthful;
Haubrich did not believe that Richardson was faking his
symptoms. RASOF ¶ 28.
defendants assert that the Nurses agreed to have Seitz assess
Richardson, while Richardson points out their conflicting
testimony. RRSOF ¶ 20; RASOF ¶ 30. Haubrich
testified that Seitz volunteered to assess Richardson, and
that Haubrich conveyed urgency about Richardson’s
health. RRSOF ¶ 20; RASOF ¶¶ 31, 35. Seitz,
however, claims that Haubrich asked her to perform the
assessment and failed to convey any urgency, instead stating
that it could be done at some point in Seitz’s shift.
RRSOF ¶ 20; RASOF ¶¶ 32, 36. The parties agree
that Haubrich related Richardson’s symptoms to Seitz
and that she must have told Seitz that no nursing assessment
had been performed. RASOF ¶ 34. Haubrich definitely told
Seitz that no vital signs had been taken. RASOF ¶ 35.
The parties dispute Seitz’s knowledge of
Richardson’s ongoing pain. RASOF ¶ 34. The parties
further dispute when Haubrich actually left the Jail after
her shift, and when Seitz went to the inmate housing area.
RRSOF ¶ 11; RASOF ¶ 37.
Seitz’s 1:30 a.m. Visit
usually received a report on an inmate’s condition from
correctional officers before going to see the inmate. RASOF
¶ 43. Sergeant Bradley Friend (“Friend”),
the officer who went with Seitz to see Richardson, stated
that another officer told him that Richardson was moved to
the observation cell due to shortness of breath and some
other “malady.” RASOF ¶ 44. Friend did not
tell Seitz about this, however. RASOF ¶ 44.
visited Richardson at approximately 1:30 a.m. RRSOF ¶
21. Friend noticed that Richardson’s skin was
yellowish. RASOF ¶ 45. Seitz asked about
Richardson’s pain level, and a still frame taken from
the cell surveillance footage appears to show her pointing to
his chest, though the defendants claim the picture is too
blurry to tell. RASOF ¶ 46. Richardson did not sit up
when Seitz met with him. RASOF ¶ 47. The parties again
dispute Seitz’ knowledge of Richardson’s pain.
Richardson claims that she testified to that effect, while
the defendants counter that her knowledge was indirect; her
only recollection was that she gave him pain medication so he
must have been in pain. RASOF ¶ 47.
notes show that Richardson complained of moderate lower
right-side rib pain. RRSOF ¶ 21; RASOF ¶ 48.
Richardson further told Seitz that he had stomach pain,
dizziness, and a history of liver cirrhosis. RRSOF ¶ 21;
RASOF ¶ 48. While Seitz did not note stomach pain
specifically, she did list his reported pain level as
“5-6“out of ten. RASOF ¶ 48. Richardson was
not wearing a shirt during their meeting, as shown on the
surveillance footage, but Seitz cannot recall if his stomach
was distended. RASOF ¶ 53.
took Richardson’s vital signs and blood sugar; except
for the blood pressure reading, the parties agree that they
were within the normal range. RRSOF ¶¶ 22-23; RASOF
¶ 54. The defendants assert that the blood pressure
reading was 128/78, which is within normal limits. RRSOF
¶¶ 22-23. Richardson counters that Seitz originally
wrote 128/58, and the “5” in that entry was later
overwritten with a “7.” RRSOF ¶¶ 22-23;
RASOF ¶ 55. Neither party has offered evidence of when
the “7” was written or by whom. Seitz used her
personal wrist blood pressure cuff to perform the test rather
than a manual, upper arm cuff, which was available to her at
the Jail. RRSOF ¶ 22; RASOF ¶¶ 57, 58. She did
not know how often she calibrated her wrist cuff and knew it
could give a reading inaccurate by as much as five points.
RRSOF ¶ 22; RASOF ¶¶ 57, 59. Seitz did not
press on Richardson’s belly or listen to his bodily
sounds with a stethoscope. RASOF ¶ 49. She did not take
his temperature. RASOF ¶ 52.
gave Richardson Tums and Tylenol, noted that she would review
the situation with a doctor “for further order, ”
and left Richardson in the observation cell. RSOF
¶¶ 24-25; RASOF ¶ 60. Seitz’s usual
practice was to offer Tums to anyone with stomach-area pain.
RASOF ¶ 61. Seitz, believing that Richardson’s
first set of vital signs were normal, decided to take a
second set during her morning medication pass. RRSOF ¶
26. The parties again dispute whether his blood pressure was
in fact normal. RRSOF ¶ 26.
the 1:30 a.m. visit, Seitz returned to the medical office
and, if she had followed her normal practice, would have
reviewed his medical chart which contained notes on his
previous blood pressure readings, the September 28, 2012
trauma, and the October 3, 2012 falling incidents (she could
not recall actually doing so). RASOF ¶ 66. Because she
did not review the chart until after her visit, Seitz did not
have notice that Haubrich had failed to document her
interaction with Richardson. RASOF ¶ 39. The parties
dispute whether Seitz would have called a doctor immediately
had she known the full scope of Richardson’s symptoms.
RASOF ¶ 40. Richardson claims that she would have, while
the defendants counter that she said so hypothetically, and
in any event did not have access to the correctional officer
log which fully recounted Richardson’s symptoms. RASOF
¶¶ 40, 68.
Richardson’s Death and Aftermath
footage showed Richardson tossing, turning, and sitting up
and down until approximately 4:30 a.m., when he stopped
moving entirely. RASOF ¶ 96. Seitz found Richardson dead
at 5:50 a.m.; she and other jail staff found him unresponsive
and were unsuccessful in their attempts to revive him. RSOF
¶ 27; RASOF ¶ 62. Wisconsin state law required jail
staff to visually check on Richardson every hour, but they
did not report anything unusual about his condition between
the 1:30 a.m. assessment and 5:50 a.m. RSOF ¶ 28. Still,
Seitz never contacted jail staff to see how Richardson was
doing. RASOF ¶ 65.
October 13, 2012, Jean Short (“Short”), the CHC
contract manager, told James Olstinske
(“Olstinske”), the Nurses’ supervisor, that
Richardson had fallen then died in his sleep. RASOF ¶
71. On November 6, 2012, CHC administrative staff met with
Olstinske and Short for a regular health services meeting.
RASOF ¶ 94. During the meeting, Racine County
Sheriff’s Department Captain Doug Wearing discussed the
policy and procedure for passing information to the jail
staff regarding what to watch for in an inmate’s
condition when the inmate is sent for observation. RASOF
Opinions on Richardson’s Treatment ...