United States District Court, D. Maryland, Southern Division
J.F. and D.F., minors, by their guardians and next friends, CRAIG AND DEBORAH ANN BENTON, et al., Plaintiffs,
CORRECT CARE SOLUTIONS, LLC, et al., Defendants.
J. HAZEL UNITED STATES DISTRICT JUDGE
case arises from the death of Melissa Mae Benton at the St.
Mary's County Detention Center (SMCDC) on October 13,
2013. Ms. Benton's parents, both individually and on
behalf of her minor children J.F. and D.F, Ms. Benton's
Estate, and Ms. Benton's adult child Brittany Fleshman
filed a lawsuit against the companies and individuals that
provided care at the Detention Center on June 17, 2016,
alleging violations of the Eighth and Fourteenth Amendment
and state law negligence and wrongful death claims.
Defendants Correct Care Solutions, LLC (“Correct
Care”), Conmed Healthcare Management, Inc.
(“Conmed”), Ashley Elizabeth Sampson, Latoya
Beaumont, Tara King, Vabian Paden, Nancy Sidorowicz, Penny
King, James Cawley, and Kristy Randolph filed a Motion to
Strike Expert Cause of Death Opinion of Marc F. Stern, MD,
MPH, and a Motion for Summary Judgment on that basis. ECF No.
83. Defendants Correct Care and Conmed filed a separate
Motion for Summary Judgment only as to the constitutional
claims. ECF No. 81-1. Defendants Penny King, Beaumont,
Randolph, Paden, Tara King, and Sidorowicz filed Motions for
Summary Judgment as to all claims, ECF Nos. 81-2, 81-3, 81-4,
81-5, 81-6, 81-7. Defendants Sampson and Cawley filed Motions
for Summary Judgment only as to the constitutional claims.
ECF Nos. 81-8, 81-9.
hearing was held on January 11, 2019. For the following
reasons, the Motions to Strike, ECF No. 80, 83, are denied.
The Motion for Summary Judgment, ECF No. 81, is granted in
part and denied in part.
Ms. Benton's Death
October 8, 2013, Ms. Benton was sentenced to prison, taken
into custody, and temporarily placed at SMCDC ahead of her
pending transfer to a state facility. ECF Nos. 92-2, 92-3,
92-4. Conmed Healthcare Management (“Conmed”) had
been purchased by Correct Care Solutions (“Correct
Care”) in 2012. ECF No. 92-5 at 8. In 2014, Conmed
contracted with SMCDC to provide onsite healthcare. ECF No.
arrival at SMCDC on October 8, Ms. Benton was given an intake
examination by Defendant Penny King, a Certified Nursing
Assistant (“CNA”) and Certified Medication
Technician (“CMT”) who worked for Conmed. ECF No.
92-7 at 7, 92-9 at 8-9. During this examination, Ms. Benton
disclosed use of Xanax, heroin as recently as two weeks
before her incarceration, and oxycodone as recently as the
day before her incarceration. ECF No. 92-7 at 8. Penny King
also included instructions to place Ms. Benton on a protocol
for opiate and benozodiazepine detoxification
(“detox”). Id. at 6, 8. A
Physician's Order for opioid withdrawal was generated for
Ms. Benton, on which Defendants Nancy Sidorowicz, a
physician's assistant, and Melissa Ann Henderson, a
registered nurse, are listed as Ms. Benton's clinicians.
Id. at 4. The order provides twenty separate
instructions, including requirements to give Ms. Benton
Phenergan for vomiting, Imodium for abdominal cramps and
diarrhea, Clonidine for blood pressure at specific blood
pressure readings, and vitamins. Id. Defendant Dr.
Vabian Lewitt, M.D.'s name appears on Ms. Benton's
prescription, which also included a tapering dose of Librium,
which controls the symptoms of withdrawal. Id. at
13-14. The order also called for recording Ms. Benton's
food intake and checking her vital signs three times a day,
with instructions to call 911 if her oxygen saturation
dropped past 92%. ECF No. 92-7 at 4.
Benton was placed in a diagnostic holding and medical
observation unit. ECF No. 92-10 at 2. CNAs Tara King and
James Cawley were on post when Ms. Benton's scheduled
dose of Librium on October 8 at 9:00pm was recorded on the
Medication Administration Record (“MAR”) as
“missed.” ECF No. 81-10 at 6. Her scheduled dose
of Librium on October 9 at 2:00am was recorded as “no
show.” Id. at 18. On the morning of October 9,
Defendant PA Sidorowicz conducted a physical examination of
Ms. Benton, noting that she had been taking 4-5 Xanax per
day. Id. at 6. Sidorowicz also recorded a blood
pressure of 148/112 and a pulse of 112, vital signs Dr. Stern
called “abnormal” in his expert report.
Id. at 6-7. CNA Penny King conducted a detox check
that afternoon at 2:10pm. Id. at 8. Though Ms.
Benton was due her fourth dose of Librium at this time,
Defendant CNA Kristy Randolph withheld the dose due to a
blood pressure of 119/90. Id. On October 9 at
9:00pm, Ms. Benton's scheduled dose of Librium is shown
as “missed” while CNAs Randolph and Beaumont were
on post. Id. at 18. On October 10, CNA Penny King
was to deliver Plaintiff another dose of Librium, but it is
recorded on the MAR as “refused.” Id. at
19. Under the heading of “reason, ” the CNA wrote
“BP [blood pressure].” Id.
Benton's October 11 8:00am dose of Librium was recorded
as “held” for “BP.” Id. That
evening, CNA Beaumont performed a detox check at 10:01pm.
Id. at 9. Ms. Benton had begun to show multiple
symptoms of withdrawal, including elevated blood pressure,
tremors, agitation, vomiting, and abdominal cramps.
Id. CNA Beaumont contacted RN Henderson and recorded
that Ms. Benton was given Phenergan and fluids, though the
MAR contains no confirmation that Phenergan was actually
administered on October 11. Id; ECF No. 92-7 at
16-17. Ms. Benton's blood pressure was above the
threshold at which the physician's order called for
administering Clonidine, but she was not given a dose of the
medication at this time. ECF No. 81-10 at 9.
morning of October 12, Ms. Benton was described by the
occupant of a neighboring cell as “deathly sick,
” “hugging the toilet, ” “complaining
of being dizzy and feeling feint, ” and “begging
for medication.” Id. at 10. At 5:05am, after
complaining of chest pains, she was taken to the Medical Unit
where she was evaluated by CNA Beaumont. Id. Her
blood pressure was 148/101 and her pulse was 48 (described in
Dr. Stern's report as “dangerously slow”).
Id. CNA Beaumont, having written “deferred to
RN” on the Flow Sheet, advised Ms. Benton to
“relax and not drink fluids in large gulps but to take
sips to stay hydrated.” Id. She also wrote,
“Imodium and Phenergen orders renewed” on the
Flow Sheet, but did not record that these drugs were actually
given at that time. ECF No. 92-7 at 9, 16-17. At 6:30am, CNA
Beaumont conducted a detox check and documented blood
pressure of 167/92 and a pulse of 36, a rate Dr. Stern called
“very dangerously slow.” Id. at 21; ECF
No. 81-10 at 12. On the detox sheet, Beaumont wrote
“Fluids encouraged. Phenergan given, ” and that
she contacted the RN. ECF No. 92-7 at 21. The MAR contains no
record that Phenergan was actually administered until 6:13pm
that evening. Id. at 16-17.
Beaumont's record of deferring to RN Henderson both in
the evening of October 11 and twice on the morning of October
12 is corroborated neither by Henderson's statement to
the Sheriff's Department investigator, in which RN
Henderson stated only that she received “one late night
call from a medical technician, ” nor by RN
Henderson's later statement in her deposition stating
that she only recalled being called once in the morning. ECF
No. 81-10 at 11.
10:10pm the evening of October 12, CNA Sampson evaluated Ms.
Benton for head pain after a fall. Id. at 13. CNA
Sampson performed a skin turgor test to evaluate Ms. Benton
for dehydration, and, finding no significant signs of
dehydration, denied Ms. Benton's request to go to the
hospital. Id. Correctional officers recorded that
Ms. Benton refused all three meals that day, as she was
unable to hold anything down. ECF No. 92-7 at 19. CNA Sampson
did not administer Phenergan in response to the vomiting. ECF
No. 81-10 at 20.
October 13, just after 6:30am, a correctional officer
notified CNA Cawley of Ms. Benton's persistent vomiting.
Id. at 13. CNA Cawley did not administer Phenergan
in response to this report. Id. at 20. A
correctional officer testified that by around 10:00am, Ms.
Benton was a “different person, ” as she was weak
and unsteady and “had a blank stare and did not seem to
even see the medic within her cell, ” and the officer
recalled informing CNA Cawley about her confusion. ECF No.
81-10 at 13-14. CNA Cawley also testified that Ms. Benton had
a “slightly altered mental status, ” as though
“time and place wasn't present.” Id.
at 14. A correctional officer recalled that when she asked
Ms. Benton for a Gatorade bottle, Ms. Benton instead handed
her a shoe. Id. at 15. By 11:19am, a correctional
officer was reporting that Ms. Benton still could not hold
down fluids, but she was still not given any Phenergan.
Id. at 20. At 1:16pm, CNA Cawley filed a “Form
35” to order Ms. Benton held in her cell due to
“her being unsteady on her feet during detox.”
3:25pm, CNA Cawley performed Ms. Benton's final detox
check. Id. at 15. At that check, Ms. Benton
“seemed more alert, ” and her vitals were within
normal limits. Id. at 16. Her blood pressure had
dropped to 106/68. Id. She was, however, still
vomiting. Id. at 20. CNA Cawley took no further
action. Id. At 5:58pm, Ms. Benton was found
unresponsive in her cell. Id. She was pronounced
dead at the hospital across the street from the detention
center. Id. For the second day in a row, she had
refused all meals. ECF No. 92-7 at 19. In the end, staff
failed to administer six of Ms. Benton's fourteen
scheduled doses of Librium. ECF No. 81-10 at 18. She also
missed doses of Thiamine and vitamins. Id. at 14.
Dr. Marc F. Stern's Expert Testimony
offer a report from Dr. Marc F. Stern in support of their
allegations. See ECF No. 81-10. Dr. Stern is a
board-certified internist specializing in correctional health
care. Id. at 1. From 2002-2008, he served as the
Assistant Secretary for Health Care in the Washington State
Department of Corrections. ECF No. 90-4 ¶ 4. He has
extensive experience directly and indirectly supervising,
hiring, firing, and teaching RNs, PAs, and primary care
physicians. ECF No. 81-10 at 2. He also volunteers as a
clinician at the Olympia Free Clinic. ECF No. 90-4 ¶ 5.
Stern testified that he consistently reads peer-reviewed
publications in general medicine and other medical
literature; he himself peer reviews four to six draft medical
manuscripts a year. Id. He also testified that he
keeps himself “current on the medical literature with
respect to withdrawal from opiates and
benzodiazepines.” Id. Earlier in his career,
from 1982 to 1998, he “regularly participated in
mortality and morbidity reviews” and, as a clinician,
has signed dearth certifications and “trained physician
trainees in the proper completion of death
certifications.” Id. ¶ 6.
report, Dr. Stern opines that “Ms. Benton died of
dehydration due to some combination of acute withdrawal from
benzodiazepines and opiates.” ECF No. 81-10 at 23. He
initially concluded that, “[w]hile this is the most
likely diagnosis, there is also good evidence supporting that
Ms. Benton died of the sole effects of benzodiazepine
withdrawal.” Id. He later supplemented his
report to state that he believes it is “at least as
likely” that Ms. Benton died from withdrawal as it is
that she died from dehydration. Id. at 36. He
concedes that it is possible, as the Medical Examiner found,
that Ms. Benton died instead of a cardiac arrhythmia.
Id. at 24.
of the precise “mechanism(s) [that] played the most
prominent role in Ms. Benton's death, ” Dr. Stern
contends that Conmed's staff committed a lengthy list of
errors that, in his opinion, were causally related to Ms.
Benton's death. Id. These errors include: Dr.
Paden's failure to notice the missed doses of Librium on
the MAR and rectify the failure to deliver the medication;
the missed or withheld doses of Librium by CNAs Tara King,
Penny King, Randolph, and Cawley; the failure of CNAs
Sampson, Beaumont, and Cawley to administer Phenergan; CNA
Beaumont's treatment during Ms. Benton's 5:05pm visit
to the Medical Center on 10/12; the treatment given during
the 10/12 6:30pm detox check, whether that treatment was
determined by RN Henderson or CNA Beaumont; the failure of
Conmed staff to respond to Ms. Benton's refusal to eat
for the final 36 hours of her life; CNA Sampson's
treatment during the 10/12 10:10pm detox check; CNA
Cawley's treatment in response to the report of Ms.
Benton's changed mental state at 10:00am on 10/13; CNA
Cawley's failure to respond to Ms. Benton's
unsteadiness on her feet and altered mental state the morning
of 10/13; and CNA Cawley's treatment in response to Ms.
Benton's drop in blood pressure and changed mental state
at 3:25pm on 10/13. Id. at 6-16, 31. In sum, Dr.
Stern believes that treating Ms. Benton's vomiting,
diarrhea, elevated blood pressure, and delirium would have
eliminated both her dehydration and her cardiac stress
factors, and likely prevented her death. Id. at 24.
Stern also criticizes Conmed's policies and procedures as
causative of Ms. Benton's death. He explains that
Conmed's CNAs customarily made treatment decisions beyond
their legal and safe scope of practice: for instance, by
choosing to withhold Librium due to blood pressure despite no
physician having made such an order or by ignoring the
thresholds specified in the physician orders to trigger the
administration of Clonidine based on their own
“clinical judgment.” Id. at 19-21.
Though CNAs train for 100 hours and RNs train for two to four
years, Dr. Stern contends that the circumstances surrounding
Ms. Benton's death are “replete with examples of
complex nursing activities that required nursing
judgment-something reserved for the RN-but that were
performed by CNAs at SMCDC and, further, activities which,
based on the totality of evidence in this case, have all
become routine parts of the CNAs' job duties.”
Id. at 27. For instance, Conmed's Rule 30(b)(6)
witness conceded that its CNAs made clinical judgments as to
whether a blood pressure reading was abnormal enough to
prompt a call to a nurse or physician. Id. at 28.
Dr. Stern argues that this problem was exacerbated in this
case by the absence of a withdrawal protocol for
benzodiazepine; Conmed staff, including CNAs, instead relied
upon an order set for opiate withdrawal or upon their own
judgment. Id. at 24-25. Dr. Stern also asserts that
the Opiate Protocol, Conmed's Flow Sheet utilized as part
of the Opiate Protocol, and Conmed's Intoxication and
Withdrawal Policy are so “woefully inadequate” as
to be causally linked to the death of Ms. Benton.
Id. at 7.
Stern further criticizes RN Henderson, who supervised the
CNAs, for being aware of and condoning the CNAs' custom
of using their own judgment to make nursing assessments.
Id. at 29. He similarly faults Dr. Paden who,
despite his role as attending physician and facility medical
director, had only “minimal” involvement in
overseeing medical care and conceded that the “nurses
there, they basically ran the . . . show. And basically I was
there basically (sic) as the physician because they needed
someone with credentials in order to - for the, for the
process to move forward.” Id. at 30.
STANDARD OF REVIEW
judges have a responsibility to “ensure that any and
all scientific testimony . . . is not only relevant, but
reliable.” Daubert v. Merrell Dow Pharmaceuticals,
Inc., 509 U.S. 579, 588 (1993). Because expert witnesses
“have the potential to ‘be both powerful and
quite misleading' . . . judges must conduct ‘a
preliminary assessment of whether the reasoning or
methodology underlying the testimony is scientifically valid
and of whether that reasoning or methodology properly can be
applied to the facts in issue.'” Cooper v.
Smith & Nephew, Inc., 259 F.3d 194, 199 (4th Cir.
2001) (quoting Daubert, 509 U.S. at 592-93, 595). A
party seeking admission of expert testimony bears the burden
of establishing admissibility by a preponderance of the
Fed.R.Civ.P. 56, summary judgment is appropriate only when
the Court, viewing the record as a whole and in the light
most favorable to the nonmoving party, determines that there
exists no genuine issue of material fact and the moving party
is entitled to judgment as a matter of law. See Celotex
Corp. v. Catrett, 477 U.S. 317, 322-24 (1986). The
burden is on the moving party to demonstrate that there
exists no genuine dispute of material fact. Pulliam Inv.
Co. v. Cameo Props., 810 F.2d 1282, 1286 (4th Cir.
1987). To defeat the motion, the nonmoving party must submit
evidence showing facts sufficient for a fair-minded jury to
reasonably return a verdict for that party. See Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).
Federal Rules of Evidence provide that:
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 ...