Kovari v. Brevard Extraditions, LLC
Case Information
5/20/2020 s/ J. Vasquez IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA HARRISONBURG DIVISION EDWARD KOVARI, )
Plaintiff, ) Civil Action No. 5:18cv0070 )
v. )
) By: Michael F. Urbanski BREVARD EXTRADITIONS, LLC, ) Chief United States District Judge et al., )
)
Defendant. )
MEMORANDUM OPINION
This matter is before the court on objections filed by defendant Brevard Extraditions, LLC, Prisoner Transportation Services of America, LLC, and Prisoner Transportation Services, LLC’s (collectively “Brevard”) Motion to Exclude Dr. Susi Vasallo, ECF No. 174; Brevard’s Motion for Summary Judgment, ECF No. 175; Brevard’s Motion to Exclude Trial Testimony of Eric L. Clark, ECF No. 179; and Plaintiff Edward Kovari’s Moti on to Exclude Testimony of Charles Hildebrand, ECF No. 182. The matters have been fully briefed, the court heard argument on all pending motions on March 10, 2020. The matters are ripe for resolution.
After a thorough review of the applicable law and substantial materials filed in this case, the court DENIES Brevard’s motion for summary judgment as to all claims except for intentional infliction of emotional harm and declaratory relief, which the court GRANTS.
The court DENIES Brevard’s motion to exclude Dr. Sus i Vasallo. The court further GRANTS in part and DENIES in part Brevard ’ s motion to exclude the testimony of Eric L. Clark and Kovari ’ s motion to exclude the testimony of Charles Hildebrand, and strictly confines the scope of their testimony as outlined herein.
I. BACKGROUND This case encompasses several constitutional and state tort law claims brought by Kovari against the two private prisoner transport companies hired for his extradition, their parent holding company, and six John Doe defendants representing the drivers involved in the transport, challenging the allegedly “extreme and inhumane conditions” of his multi-day transport from Virginia to Texas. Compl., ECF No. 1, at 1.
A. FACTUAL SUMMARY Kovari alleges physical and emotional injuries arising out of his seventeen (17) day transport from Winchester, Virginia to Houston, Texas for the prosecution of a false theft charge that was ultimately dismissed. Def. Mot. Sum. J., ECF No. 177, at 2; Pl. Opp. Mot., ECF No. 193, at 4. Kovari was arrested on September 2, 2016 outside of a Sheetz gas station and ultimately extradited to Houston, Texas where he faced outstanding charges for the theft of a vehicle. Frederick County General District Court Records, ECF No. 177-1. Until the time of his transport, September 12, Kovari was booked in Northwestern Regional Adult Detention Center (“Northwestern Regional”). Northwestern Regional Records, ECF No. 177-3.
There, Northwestern Regional staff completed a Booking Report for Kovari as a part of their routine intake process. Business Record Declaration, ECF No. 194-5, at 2-3. This form is completed for all inmates and is a prerequisite to seeing a medical professional at the facility. Id. Kovari stated that he told staff that he had been diagnosed with hypertension, was pre-diabetic, was morbidly obese at over 400 pounds, that he had a history of hospitalization for heart issues, and that he takes prescription medication for his hypertension. Kovari Dep., ECF No. 194-2, at 127:22-128:21, 134:18-135:2; see also Winchester Medical Center Records, ECF No. 194-6 (confirming the aforementioned diagnoses, indicating medication for hypertension was prescribed, chronicling hospitalizations for cardiac issues). The completed form records his age, relevant medical history such as prior treatment for substance abuse, a history of heart disease or hypertension, his status as a pre-diabetic, and the identification of “other medical/dental problems.” ECF No. 193 -5, at 2-3. The form reflects that Kovari was “Referred to Medical” based on his responses. Id. Brevard does not acknowledge the content of this form, alleging that “[t]here are no records from Northwestern Regional indicating Plaintiff ever requested or received any medication or medical care while in custody there.” ECF No. 177, at 4.
Next, Nurse Johnny Tillman, a member of the medical staff at Northwest Regional, completed an Admission Screening form that was intended to record underlying medical conditions or concerns an inmate articulates during processing. Northwestern Regional Admission Form, ECF No. 177-3. No underlying medical conditions were recorded on this form. The parties dispute the extent to which the form Tillman completed accurately reflected the information Kovari provided during his medical interview. Brevard alleges that Kovari denied having any underlying medical condition or taking any prescription medications. ECF No. 177, at 3. Kovari contends he reiterated the same information to Tillman that he had told Northwestern Regional staff during his booking. Kovari Dep., ECF No. 194-2, at 134:1- 135:10. Tillman recorded Kovari’s weight as 463 and his blood pressure as 168/92, Admission Form, ECF No. 194-7, which is elevated. ECF No. 193, at 2; see also Tillman Dep., ECF No.
194-8 (admitting the blood pressure is elevated), Vassallo Report, ECF No. 194-9, at 5. Kovari claims he took medication for his hypertension for the duration of his time at Northwestern Regional, approximately eight (8) days. Kovari Dep., ECF No. 194-2, at 80:20-81:5, 131:13- 132:15, 135:11-14; Prisoner Transportation of America Receipt, ECF No. 194-11 (checking the box that Kovari was picked up with medication and property); Caruso Dep., ECF No.
194-12, at 90:11-13. Brevard denies that Kovari received medical attention or medication. ECF No. 177, at 4.
Harris County hired Brevard, [1] a private extradition company, to transport Kovari from Winchester, Virginia to Houston, Texas. Harris County Contract, ECF No. 194-14. On September 12, 2016, Kovari was picked up by Brevard employees Mark Nahrstedt and Pedro Cuneo from Northwestern Regional. Trip Log, ECF No. 177-5. Pursuant to their standard pick up process, Nahrstedt filled out a Prisoner Medical Information document, which does not refl ect any information about Kovari’s alleged underlying medical conditions existing at the time of transport; however, it does reflect that Kovari had been hospitalized for heart monitoring months earlier and that he was picked up with medication. Prisoner Medical Information, ECF No. 177-7. Brevard claims that Kovari denied having any medical conditions. ECF No. 177, at 4. Kovari claims that he did communicate his hypertension, hospitalizations, and need for medication, but that the information was not recorded and that he was not given an opportunity to review the form before being asked to sign it. Kovari Dep.
ECF No. 194-2, at 70:6-72:7. The parties dispute whether Cuneo and Narhstedt received the required Medical Authorization for Transport form when they picked up Kovari at Northwest Regional, but Brevard admits they have been unable to locate any such form despite claiming they did receive it. Def. Resp. to RFA, ECF No. 194-21.
That same day, the van suffered a tire blowout and damage to the van’s cooling system, which caused the transport to halt on the side of the road for a few hours while the issue was addressed. ECF No. 177 at 4. Kovari recalls that it was a hot day, over 80 degrees, and that passengers were not permitted to leave the van while the issue was resolved. ECF No. 193, at 16. During this incident, local officers arrived at the scene to offer help, during which time passengers were permitted to exit the vehicle and use the restroom. Id. Kovari claims that drivers only permitted this at the behest of the local officers, but at the March hearing, Brevard said that the hesitation to allow passengers out of the van was born out of security concerns.
The parties dispute the specific route taken during the course of Kovari’s transport, but agree that the total trip took 17 days, including about 120 hours of driving time. ECF 177, at 2; ECF 193, at 4. Kovari claims that he spent the 120 driving hours in the back of the van, in a compartment Brevard refer s to as the “cage.” PTS Manual (June 2016), ECF No. 194 -29, at 59. He claims that the cage was segmented into compartments only 30 inches wide, divided by a 79-inch metal wall dissecting the space. He said each section had a metal bench without cushions or seatbelts. ECF No. 193, at 5. Photographs show that Brevard installed seatbelts after the transport in question. Lewis Decl., ECF 194-30, at 2. Photographs, ECF No. 194-32.
During the transport, Kovari was further restrained by shackles on his wrists and ankles, which he claims caused pain and swelling. Kovari Dep., ECF No. 194-2, 64:21-65:12. Cuneo claims that, recognizing Kovari’s size, he used special “king kong” restraints, the largest they had.
Cuneo Dep., ECF No. 177-11, 132:7-20. Kovari complained about the pain to his drivers during the transport. Id. He shared his bench with other passengers during his transport, but the parties dispute the maximum number of passengers in the van at any given time.
At times, the transport van would stop at secure facilities for the night. ECF No. 177, at 5-6. However, Kovari alleges that on seven (7) different occasions, the van drove through the night. ECF No. 193, at 7. He claims that the van regularly went over six (6) hours without stopping for a restroom break, and on one instance may have gone over fourteen (14) hours without a break. Id. See also Lee Decl., ECF No. 194-25, at 28 (reconstructing the journey based on the van’s GPS data procured from a third-party vendor). This resulted in passengers allegedly relieving themselves in the van, at times urinating in bottles, defecating on the floor, or vomiting on the floor. Kovari Dep. 188:3- 6. Drivers involved in Kovari’s transport are familiar with the practice of passengers urinating in bottles but have never explicitly instructed a passenger to do so. Diaz Dep., ECF No. 194-36, at 108:10-109:2; Caruso May 2 Dep., ECF No. 194-12, at 165:8-20. Kovari states that the drivers did not clean the back of the van, short of removing fast food wrappers after meals. ECF No. 193, at 8. However, some drivers claim that it was their practice to clean the van every time an inmate was dropped off. Ismael Torres Dep., ECF No. 177-15, at 79:24-25. During the course of the transport, passengers experienced erratic driving, sometimes at high speeds and other times with the van swerving off the road. ECF No. 193, at 9.
Kovari assert that when he complained of pain or discomfort, he was ignored. He claims he felt “extremely ill,” inclu ding experiencing physical pain, headache, dizziness, disorientation, dehydration, and nausea. ECF No. 193, at 9. Based on these symptoms, he claims he knew his blood pressure was elevated. Id. He maintains that he clearly, repeatedly, and emphatically communicated concerns about his blood pressure to the drivers and was either ignored or threatened with a taser. Id. at 9-10. He remembers drivers telling the other passengers that taking Kovari to the hospital would result in the remaining passengers waiting in the van until he was discharged, in what he believes was an attempt to escalate tension between the passengers and discourage Kovari’s complaints. Id. Kovari also indicates he regularly requested medical assistance at the secure facilities at which the transport stopped, but was denied because his medical care was “PTS’s responsibility.” Id. Brevard refutes these assertions, claiming Kovari never requested or received medical care at any secure facility. ECF No. 177, at 16-17. Brevard claims that if Kovari had requested or received medical care, then the facility would have sent Brevard an invoice commemorating the interaction. Brasfield Decl.
ECF No. 177-10, at 1-2.
Kovari states that he suffered physical and emotional harm from the trip. Upon arriving in Houston, he was hospitalized, rendered treatment, and prescribed medication to control his high blood pressure. Harris County Sheriff’s Office (HCSO) Medical Records, ECF No. 194- 28. Kovari alleges that this hospitalization was caused by the conditions of the transport and being denied his medication for the course of the trip. ECF No. 193, at 10. Brevard maintains that the transport received no instruction to provide medical care from Northwest Regional and that Kovari’s condition predates the tr ansport . ECF No. 177, at 3. Kovari’s medical records reflect that he took his blood pressure medication “only intermittently” and Kovari admits to ceasing his blood pressure medication shortly after his release from detention.
HCSO Medical Records, 194-28, at 8; Kovari Dep., ECF No. 194-2, at 168:18-169:13.
Kovari claims the severe pain he felt from the restraints, the confined space, and the inability to move persisted for some time after the transport, and that the swelling on his wrists and ankles remained for weeks. ECF No. 193, at 11. Emotionally, Kovari indicated that he felt like he was going to die in the van during the transport, remains traumatized by the experience and the sight of white vans, and suffers from poor sleep and nightmares as a result of the transport. Id. Kovari admits he has experienced sleep disturbances in the past, when a fellow inmate committed suicide seven years earlier. Kovari Dep., ECF No. 194-2, at 195:1- 196:9.
Kovari contends that his transport is not unique; that Brevard maintains policies and customs that maximized business profits at the cost of the wellbeing of passengers. ECF No.
193, at 12. The contract between Brevard and Harris County was priced per prisoner, per mile, which Kovari claims incentivizes long, illogical routes that maximize miles per day and days per passenger. Id.; see also Harris County Contract, ECF No. 194-14, at 4. He claims that the declarations of Brevard employees show that they were instructed to take as infrequent breaks as possible and to “keep [their] rig rolling” for 60 to 70 hours straight . Id, at 14; PTS Manual, ECF No. 194-29, at 49. The parties disagree about the extent to which routes are planned in advance to regularly provide restroom, meal, and sleep breaks as well as the degree to which Brevard employees are trained to assess and respond to passenger medical conditions. Brevard has been subject to lawsuits in the past, putting it on notice to challenges as to the constitutionality of its practices. ECF No. 193, at 19 (collecting cases).
B. PROCEDURAL HISTORY On April 24, 2018, Kovari filed an action in district court against Brevard alleging several federal constitutional claims, pursuant to 42 U.S.C. § 1983, and state tort law claims.
ECF No. 1. In response, Brevard filed a motion to dismiss count one of the complaint, Kovari’s § 1983 constitutional claims, arguing that , based on the complaint, there were no grounds to find state action. ECF No. 20. Kovari responded, arguing that despite the fact that defendants were private entities, that state action doctrine applied when they were acting on behalf of the government, performing tasks that are generally the exclusive prerogative of the government. ECF No. 25. The court heard argument on the motion during a November 9, 2018 hearing and, for the reasons stated in open court, denied Brevard’s motion to dismiss, finding that Kovari sufficiently pled facts to allege the private entities were acting under the color of state law. ECF No. 39. On December 21, 2018, the parties filed a joint stipulation of partial dismissal, dropping the claims against the John Doe defendants. ECF No. 47.
On April 26, 2019, in the midst of discovery, Brevard filed contemporaneous motions for a protective order to prevent Kovari from accessing financial records related to its net worth, ECF No. 77, and to bifurcate the trial on claims from the assessment of punitive damage, ECF No. 78. In support, Brevard principally argued that defendant entities’ financial information was highly sensitive and to produce such evidence at trial before Kovari presented a prima facie case of liability would be highly prejudicial and would risk confusing the jury.
Kovari responded to the motion for protective order, ECF No. 80, and the motion to bifurcate the trial, ECF No. 84. He argued that a plaintiff is not required to make a prima facie case for liability as a condition precedent to discovering information related to net worth in a punitive damages case, and that even if there was such a requirement, he has satisfied it with specific allegations concerning the willful nature of Brevard’s conduct. ECF No. 80. Additionally, Kovari states that the two protective orders already in effect are sufficient to protect any sensitive information from the public. Id. Further, Kovari argued a motion to bifurcate the trial with discovery ongoing was premature. ECF No. 84.
The court agreed with Kovari that the great weight of judicial precedent and the practical effect of the two protective orders already entered in this case counsel against granting Brevard’s motion for protective order. Accordingly, the motion for protective order was denied. ECF No. 88. The court also granted the motion to bifurcate, finding separate trials on the issue of punitive damages and the establishment of liability necessary to prevent undue prejudice to Brevard. Id.
On May 24, 2019, Kovari entered a motion for extension of time to complete discovery and for continuation of trial, originally set to begin August 19, 2019. ECF No. 89. He also filed a motion to expedite the resolution of these requests given that discovery was scheduled to close on June 7, 2019 per the terms of the original scheduling order. ECF No. 90. He argued that although it had engaged in active discovery from the outset and had intended to complete discovery by the original deadline, Brevard had produced “the vast majority” of their responsive documents in the last six weeks of discovery, including one “highly relevant document” produced two days prior to the filing for an extension. Id. Magistrate Judge Joel C. Hoppe heard arguments on the proposed extension on June 6, 2019 and reviewed the relevant documents. Magistrate Judge Hoppe found good cause to extend the close of discovery and continue the trial date. ECF No. 101.
On June 20, 2019, Brevard filed for leave to amend their answer to include the affirmative defense of the statute of limitations, which they claim they did not know applied until they reviewed Kovari’s discovery disclosures. ECF No. 106. Namely, Brevard claims that the deposition they took of Kovari’s expert Dr. Susi Vassallo demonstrates that “this case is not a garden-variety personal injury case potentially subject to a two year statute of limitations, but, instead, is a claim based purely on conditions of confinement,” which “may be governed, in whole or in part, by the one year limitations in Virginia Code § 8.01-243.2. Id. at 2. In response, Kovari argued that there had been no new information in Dr. Vassallo’s deposition that was not included in the complaint, that both federal and Virginia courts have found that the one-year limitation in § 8.01-243.2 does not apply to claims of constitutional deprivations, and that Virginia substantive law does not apply to this case. ECF No. 109. However, Kovari did not oppose the motion for leave and the court granted it. ECF No. 112.
On September 6, 2019, Brevard filed a second motion to bifurcate the trial, this time requesting that the court try separately the constitutional claims and the state tort law claims.
ECF No. 116. Brevard argued that the § 1983 claims hinge on establishing unconstitutional policies or practices whereas the tort law claims require the showing of a breached duty of care, which Brevard contended are sufficiently different to warrant separate trials. Id. Brevard also claimed that the evidence required to establish policies and practices, such as conditions on prior transports, would be unrelated to tortious liability and would prejudice the jury. ECF No. 117. Kovari rejected these assertions, claiming that he anticipated substantial overlap in evidence used to support his constitutional claims and his state law claims. ECF No. 141. He argued that in addition to an agency theory of liability, he would also argue that defendant- corporate entities directly failed a duty of care in establishing unreasonable policies and practices. He also argued that he would use evidence of prior similar incidents and corporate policies to demonstrate notice and intent for the tort claims. Id. Brevard replied that such uses of evidence are impermissible under federal rules and Virginia law, and that to permit such arguments would confuse the jury. ECF No. 145. The court found a de facto trifurcation of the trial, in light of the prior order granting a bifurcation, unworkable and unwarranted under the circumstances. ECF No. 152.
Contemporaneous to the second motion to bifurcate, Brevard also moved for partial summary judgment, asserting that Kovari’s four claims relating to conditions to confinement ought to be dismissed as a matter of law. ECF No. 118. Brevard argued that the Virginia Code, setting a shorter statute of limitations for conditions of confinement claims than for general personal injury claims, applies in this case and forecloses Kovari’s pursuit of these causes of action. Because more than a year had elapsed between the transport and the date on which this suit was filed, Brevard claimed it was entitled to judgment as a matter of law on these claims. Kovari responded that because he was in the custody of a private transport under contract with Harris County She riff’s Office out of Texas, then § 8.01 -243.2 does not apply to him. Brevard replied, arguing that Kovari’s reading of the Virginia Code violated the Dormant Commerce Clause and the Equal Protection Clause. ECF No. 135, at 5. The court agreed with Kovari, finding the statute inapplicable, and denied Brevard’s motion for summary judgment as to all claims arising out of Kovari’s conditions of confinement.
I. EXPERT MOTIONS First, the court will address expert motions, because their resolution will determine which evidence the court is permitted to consider for summary judgment. Celotex Corp. v.
Catrett,
The admissibility of expert reports and future testimony at trial is governed by Federal
Rule of Evidence 702.
[2]
F.R.E. 702. Rule 702’s prescriptions are guided by the Supreme Court’s
decisions in Daubert v. Merrell Dow Pharms., Inc.,
“[C]ourts should be conscious of two gu iding, and sometimes competing principles: Rule 702
was intended to liberalize the introduction of relevant expert evidence and expert witnesses
have the potential to be both powerful and quite misleading.” Hickerson v. Yamaha Motor
Corporation,
This court is obligated to act as a gatekeeper for expert opinions, but it notes that the
“traditional and appropriate means” of challenging expert testimony are “vigorous cross -
examination, presentation of contrary evidence, and careful instruction on the burden of
proof….” Glass v. Anne Arundel Cty.,
App’x 179 (4th Cir. 2018). Accordingly, “[t]he court need not determine that the expert
testimony is irrefutable or certainly correct.” United States v. Moreland,
A. DR. SUSI VASSALLO
In challenging the admissibility of Dr. Vassallo’s testimony in this case, Brevard raise s several objections: (1) Dr. Vassallo is not qualified to provide expert medical testimony; (2) Dr. Vassallo’s testimony is irrelevant; (3) Dr. Vassallo’s opinions are unreliable; and (4) Dr.
Vassallo does not provide opinions to a reasonable degree of probability. ECF No. 175, at 13.
Kovari has retained Dr. Vassallo, a practicing physician and professor of emergency medicine, to assist the jury in understanding medical concepts it will hear about at trial. ECF No. 204, at 2. Specifically, Dr. Vassallo will be asked to testify about hypertension and whether it is a serious medical condition, about Kovari’s medical records and how they should be interpreted, about the risk posed by the transport experience to individuals with Kovari’s conditions, about Kovari’s hosp italization in Houston , about Kovari’s blood pressure readings before and after the transport and how to interpret them, and about the risk posed by Brevard’s policies to individuals with underlying medical conditions. Id. at 3-4.
First, the court address es Dr. Vassallo’s qualifications. Upon reviewing Dr. Vassallo’s curriculum vitae, the court finds her background in emergency medicine extensive. ECF No.
175-14. Beyond her 35 years as a practicing physician, Dr. Vassallo has served a two-year appointment as an expert evaluating medical care in detention facilities for the Department of Homeland Security and has given a national lecture in 2015 on reducing death from heat in prisons. Id. She is board certified to practice emergency medicine and medical toxicology. ECF No. 175-13. She is also a Certified Correctional Health Professional by the National Commission on Correctional Health Care. Id. In her capacity as a healthcare professional, she has treated many prisoners and has previously testified in litigation involving conditions of confinement in correctional facilities. Vassallo Dep., ECF No. 175-15, at 13-15. Dr. Vassallo has indicated she has treated hundreds of prisoners as well as hundreds of patients with Kovari’s conditions. Vassallo Rep., ECF No. 175-13, at 2.
Brevard argues that Vassallo is not qualified to provide testimony in this case given her lack of knowledge about prison transportation, the details about Kovari’s specific transport, specifications about the van used, and the nature of the training Brevard provides its employees. ECF No. 175, at 13- 15. Brevard’s arguments do not seem to challenge Dr. Vassallo’s qualifications to interpret Kovari’s medical records or blood pressure readings, or her ability to testify as to the nature and seri ousness of Kovari’s underlying conditions such as obesity and hypertension. The thrust of Brevard’s objections to Dr. Vassallo’s qualifications seem to argue that a familiarity with treating prisoners generally does not qualify Dr. Vassallo to opine “on the policies and practices applicable to the actual transport.” Id.
The court finds Dr. Vassallo abundantly qualified to provide expert medical testimony
regarding the nature of Kovari’s underlying conditions, the information in Kovari’s medical
records, the interpretation of blood pressure readings, and the conditions that may exacerbate
Kovari’s underlying conditions. Her experience as an academic and practicing physician
qualifies her to provide routine medical expert testimony about the severity and treatment of
Kovari’s conditions . Dr. Vassallo has unique experience treating prisoners specifically, but the
court would have found her qualified to address matters involving Kovari’s medical conditions
without such experience. Dr. Vassallo’s lack of experience working with passengers in long
distance transports, her lack of knowledge of the private transport industry, and her lack of
total recall as to the facts of this specific transport do not disqualify her as an expert. See
Friendship Heights Assocs. v. Vlastimil Koubek, A.I.A.,
Joseph, No. 3:04-CV-10099,
3d at 715 – 16 (fi nding that expert’s purported “failure to take other data into account— go to the weight of the report, not its admissibility, and may be challenged on cross examination”).
However, the court finds Dr. Vassallo unqualified to opine on the narrow issue of Br evard’s specific policies. Kovari has indicated he aims to solicit Dr. Vassallo’s opinion, as a medical professional, “regarding why Defendants’ policies – which vest their drivers and rank- and-file employees with authority to make medical decisions for passengers – are dangerous.” ECF No. 204, at 4 (citations omitted). Dr. Vassallo is permitted to provide testimony regarding general conditions or factual circumstances of the transport that may exacerbate Kovari’s underlying conditions, but she is not qualified based on her experience as a physician to prophesize about potential harm arising out of Brevard’s policies and procedures. Such an opinion would require Dr. Vassallo to interpret documents and make assumptions for which she has no basis for expertise. Further, the jury does not require the assistance of an expert to extrapolate from permitted expert testimony about Kovari’s medical conditions and circumstances that would exacerbate them to the practical implications of Brevard’s policies.
Brevard als o suggests Dr. Vassallo’s testimony is irrelevant to the case. The court finds
no basis for this contention , given that the crux of Kovari’s claims is that he was physically
harmed by the transport. Both his constitutional law and tort law claims are predicated on the
showing of a serious risk of harm or actual harm. See, e.g., Thompson v. Virginia, 878 F.3d
89, 107 (4th Cir. 2017) (case concerning constitutional challenge to conditions of
confinement); Scinto v. Stansberry,
Brevard seeks to exclude Dr. Vassallo as irrelevant because, in its reading of the testimony, Dr. Vassallo does not find a causal relationship between the transport and Kovari’s hospitalization and so her testimony does not help resolve the core factual disputes in this case. ECF No. 174, at 17 (“In sum, Vassallo does not express any opinion that Plaintiff suffered harm as a result of Defendants’ policies, conditions of confinement, or denial of medical care.”). However, Kovari claims Dr. Vassallo’s testimony does support the finding of causation. See Vassallo Dep., ECF No. 204-5, at 47:15- 20) (Question: “Okay, did Mr. Kovari suffer any harm as a result of his transport to a reason [sic] degree of probability?” Answer: “The answer is yes.”). Viewing the evidence in the light most favorable to the non-moving party, the court finds Dr. Vassallo’s testimony, taken as a whole, does support causation. Regardless, the question of causation is an ultimate issue for the fact finder to resolve and so, the jury can find the existence of causation if the totality of evidence proffered at trial supports it even if Kovari’s expert cannot definitively conclude as much.
Next, Brevard argues that the basis for Dr. Vassallo’s opinions is not reliable. It argues
that she relies on standards from the American Correctional Association (“ACA”) and the
National Commission on Correctional Health Care (“NCCHC”) , which are not the
“minimum” standards at issue in a constitutional inquiry, but rather “aspirational” goals. ECF
No. 175, at 19. However, the court finds that the bulk of Dr. Vassallo’s opinions do not rely
on these standards at all, but are based on her specialized knowledge and experience as a
physician in emergency room medicine and treating prisoners.
[3]
Additionally, the court finds
these standards are relevant to the arguments that Brevard breached a duty of care and were
deliberately indifferent to medical needs, especially in light of the fact that employees for
Brevard have indicated that their policies were modeled in part based on ACA standards. See
e.g., Caruso Dep., ECF No. 204-9, at 136:10-21, 187:6-20; Brasfield Dep., ECF No. 204-10,
at 39:21-40:7. Finally, the court finds Brevard misreads the case law on the issue, interpreting
cases that find that violations of industry standards are not per se violations of constitutional
law to mean that industry standards are wholly irrelevant to establishing a constitutional
violation. Doe By & Through Lopez v. Shenandoah Valley Juvenile Ctr. Comm’n , No. 5:17-
cv-97,
Finally, Brevard claims D r. Vassallo’s testimony should be precluded because she does not express her opinions to a reasonable degree of certainty. The court finds this argument unavailing as Dr. Vassallo’s report concludes that “Mr. Kovari had a number of serious heal th conditions at the time that he was transported”; and “ [h]e was an individual who needed special care during his transport.” Vassallo Rep., ECF No. 175 -13, at 12-13. Further, her supplemental report unequivocally refutes conclusions drawn by Brevard’s ex pert, Dr. Kevin Scott Ferentz, including his opinion that Kovari did not have hypertension, take medication for it, and experience symptoms as a result of it. Vassallo Suppl. Rep., ECF No. 175-16. The court finds no reason to believe Dr. Vassallo equivocates such that her testimony should be precluded.
Accordingly, the court DENIES in part Brevard’s motion to exclude the testimony of Dr. Vassallo. Her expert testimony is permitted to all matters related to Kovari’s medical conditions and medical records, including opinions as to whether certain stressors may exacerbate certain medical conditions. However, Dr. Vassallo is not permitted to opine on the risks presented by Brevard’s policies and procedures , such as the discretion it affords drivers in picking up passengers, to the extent that she references, interprets, or applies them.
B. ERIC L. CLARK Brevard files a motion to exclude the testimony of Eric C. Clark, offered by Kovari as an expert on best practices for transporting prisoners. ECF No. 180. Kovari expects to call on Clark to testify on the need for planned restroom breaks, the unsanitariness of letting inmates urinate on the transport, the pre-transport assessment required for passengers with special needs, and the proper response to complaints of pain and requests for medical attention during the transport. Brevard argues that Clark should be excluded because: (1) he has no experience with long distance transports; (2) his opinions rely on an incorrect standard; and (3) he is unfamiliar with the facts of this case. ECF No. 180.
Brevard claims that Clark lacks sufficient experience with or knowledge of the private transport industry, long distance extraditions, and the statutes and regulations on which he bases his opinions. ECF No. 180, at 3. In so a rguing, Brevard seems to challenge Clark’s qualifications as an expert on long distance transports and the foundation of his opinions regarding reasonable policies compliant with applicable law. Clark retired from an over twenty (20) year career with the U.S. Marshals Service (“USMS”) in August 2017, where he directed and executed the transportation of adult and juvenile prisoners. Clark Rep., ECF No. 205-1, at 3. He claims he has experience transporting several hundred passengers each day on local, mid-range, and long-distance extraditions. Id. at 4. Clark also has experience serving as an instructor training other law enforcement officers on prison transportation. Clark Rep., ECF No. 205-1, at 4-5. Brevard argues that Clark’s routes were, at their longest, no more than eight (8) hours and therefore incomparable to the multi-day transports at issue in this case. ECF No. 180, at 4.
The court finds Clark qualified to provide opinions on prison transport practices, reasons for their development, and risks of nonenforcement. The jury could benefit from expert testimony explaining the unique factors prison transports must account for, such as public safety, and the external limitations to route design, such as the availability of secured facilities. To the extent Clark lacks firsthand experience with private transports and long distance transports like the one at hand, the court finds these issues go to the weight of Clark’s testimony, not its admissibility. See Friendship Heights Assocs., 785 F.2d at 1159. Brevard may bring up any gaps in knowledge or experience on cross-examination.
Further, t he court does not find Clark’s lack of familiar with laws and regulations such as the Interstate Transportation of Dangerous Criminals Act of 2000 (also known as “ Jeanna ’ s Act ” ), 34 U.S.C. § 60103, a statute governing the private transportation industry, to be fatal to his testimony. Clark references the statute, and related regulations, to draw comparisons between the standards that apply to USMS for prison transport and the standards that apply to private transports. Indeed, Jeanna ’ s Act does not permit “ stricter standards with respect to private prisoner transport companies than are applicable, without exception, to the United States Marshals Service, Federal Bureau of Prisons, and the Immigration and Naturalizations Service when transporting violent prisoners under comparable circumstances. ” Id. As such, Clark ’ s experience transporting prisoners for the Marshals Service is directly relevant. Brevard may attempt to discredit Clark’s testimony on the comparison of regulations that apply to private transport to those that apply to federal transport on cross-examination.
Brevard also suggests Clark’s opinion is unreliable because it is based on inapplicable standards. Similar to the court’s response to Brevard’s objection to Dr. Vassallo’s testimony on the same grounds, the court finds that Clark’s reference to “best practices” are not fatal to the admissibility of his testimony. First, the court finds that Clark’s use of the term “best practices” do es not suggest that those standards are aspirational and purely voluntary. They appear to be mandatory internal guidelines for USMS. Clark Dep., ECF No. 180-3, at 279:5- 18. Second, the court finds that while expert opinions as to desirable prison transport conditions ar e insufficient to establish constitutional minima, they can be “helpful and relevant.” Braggs v. Dunn, 317 F.R.D. 634, 651 (M.D. Ala. 2016) (quoting Rhodes v.
Chapman,
Brevard also seeks preclusion of Cla rk’s testimony on the basis that he lacks proper foundation due to his lack of familiarity with the facts of this case. Kovari offers Clark to support his Monell claim that Brevard maintained unconstitutional policies and practices, which does not require Clark to have any specific factual knowledge of Kovari’s specific transport. The court finds that Clark has sufficient foundation to opine on Brevard’s policies, how they compare to USMS policies, and the risks they pose to passengers generally given his e xperience. Additionally, Clark’s opinion that a prisoner whose records indicate that he had received prior hospitalization for heart monitoring needs a special transport does not exceed the scope of his expertise. Clark Rep., ECF No. 205-1, at 10-11. Clar k’s opinion is valid as long as he is being asked to apply his personal knowledge and experience to hypothetical scenarios. However, Clark ’ s lack of specific knowledge as to the circumstances of Kovari ’ s transport precludes him from offering an opinion as to whether Bre vard’s policies caused Kovari any harm.
Brevard’s claim that Clark’s t estimony is irrelevant as it does not go to the issue of
damages also fails. Clark’s testimony is relevant to help the jury apply an objective
constitutional standard of care to a specialized industry. The Federal Rules of Evidence
indicate that expert tes timony is permissible only when it will “help the trier of fact to
understand the evidence or to determine a fact in issue.” Fed. R. Evid. 702(a). Testimony from
an expert is presumed to be helpful unless it concerns matters within the everyday knowledge
and experience of a lay juror. Persinger v. Norfolk & Western Railway Co.,
1188 (4th Cir. 1990) (testimony about how difficult it is to lift heavy things is not “helpful”
and is thus excludable). “On the other hand, any ‘objective’ test implies the existence of a
standard of conduct, and, where the standard is not defined by the generic — a reasonable
person — but rather by the specific — a reasonable officer — it is more likely that Rule 702's line
between common and specialized knowledge has been crossed.” Kopf v. Skyrm,
Accordingly, Brevard ’ s motion to preclude the testimony of Eric L. Clark is DENIED , subject to the limitations on Clark’s testimony included herein.
C. CHARLES HILDEBRAND Kovari filed a motion to limit the scope of permissible testimony for Brevard’s expert Charles Hildebrand who, like Clark, is offered to address the reasonableness of Brevard’s policies and procedures. Unlike Brevard, Kovari does not seek to preclude Hildebrand from testifying at all, but rather to prevent testimony on: (1) whether passengers urinated or defecated in the van during Kovari’s transport; (2) the number and frequency of bathroom breaks on the transport; (3) the provision of food and water on the transport; (4) the number and placement of passengers in the van; (5) the functionality of the air conditioner in the van; (6) the availability of beds, showers, and laundry during the transport; (7) the type of shackles used on Kovari; (8) whether transport employees knew about Kovari’s medical condition.
ECF No. 183. He argues that these opinions are unqualified lay opinions with insufficient foundation. Id. Brevard disagrees that Hildebrand’s testimony is deficient and opposes its exclusion. ECF No. 203.
According to his report, Hildebrand is an experienced in correctional facility management and security, serving both public and private facilities. Hildebrand Rep., ECF No. 183-2, at 1-4. In his role as a Security Specialist/Emergency Manager for the Colorado Department of Corrections, he helped draft policies, administered trainings, and provided subject matter expertise on topics including offender management, offender transportation, use of force, security procedures, and emergency management. Id. at 2. He has worked in similar security-focused capacities at other correctional institutes in management and as a consultant. Id. at 3. Hildebrand indicates he has experience conducting and supervising individual and mass transports of offenders, including by van, on multiday journeys, across state lines. Id. at 4. He also has experience coordinating with private contractors regarding staffing for hospital security and transports for state facilities. Id.
The court finds Hildebrand qualified to opine generally on transport procedure, security concerns, differences between public and private correctional industry entities, staff training, applicable industry standards regarding transports, and the logistics of long-distance transports involving multiple passengers based on his extensive experience in the industry.
However, the court agrees with Kovari that the basis for his expertise does not qualify him to weigh in on factual disputes regarding Kovari’s specific transport.
The court finds that factual conclusions about Kovari’s transport go beyond the scope
of Hildebrand’s expertis e and are based on suspect methodology . Hildebrand’s testimony
regarding the topics Kovari seeks to preclude largely suffer the same defect: the opinions do
not rely on his specialized knowledge or experience and are not born out of a defensible
methodology recognized in the field. In evaluating this proffered expert testimony, the court
must engage in “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.,
Moreover, Hildebrand’s testimony regarding human waste, provision of food and water, passenger placement in the van, functional air conditioning, access to beds and hygiene, the size of shackles, and whether Brevard’s employees knew about Kovari’s conditions constitutes lay opinion lacking a rational basis in Hildebrand ’ s perception. See Fed. R. Evid.
701. “A critical distinction between Rule 701 and Rule 702 testimony is that an expert witness
‘must possess some specialized knowledge or skill or education that is not in possession of the
jurors.’” Certain Underwriters at Lloyd's, London v. Sinkovich, 232 F.3d 200, 203 (4th
Cir.2000) (citation omitted). While the same witness can provide lay and expert testimony, it
is axiomatic that lay testimony must be “based on the perception of the witness.” TLT –
Babcock Inc. v. Emerson Elec. Co.,
However, the court finds that, if Brevard can establish that the trip logs it introduces at trial are standard in the industry, Hildebrand will be permitted to testify as to their contents based on his experience. A jury may be able to understand the contents of such logs without assistance, but given their unintuitive nature, the court finds an expert may be useful. Additionally, the court finds the content of the trip logs to be inextricably tied to the valid opinions Hildebrand seeks to introduce such as reasons for allegedly circuitous routes and limited breaks. Should Kovari disagree with Hildebrand’s interpretation of the records, he may introduce contrary evidence or cross-examine him on the subject. Further, while Hildebrand will not be permitted to testify as to the actual availability of showers, beds, or laundry to Kovari, he will be allowed to address whether such accommodations are common at secure facilities and whether they are routinely made available to private transports. Similarly, he may also address the availability of different sizes of restraints, passenger placement practices in a vehicle, and schedule of food and water provisions in the industry generally.
Accordingly, as with Brevard ’ s motion as to Clark, the court GRANTS in part and DENIES in part Kovari’s motion to limit the expert testi mony of Charles Hildebrand.
II. APPLICABLE LAW FOR SUMMARY JUDGMENT Kovari ’s four causes of action are currently before the court: (1) constitutional deprivation, (2) negligence, (3) gross negligence, (4) intentional affliction of emotional distress.
Compl., ECF No. 1. In support of the constitutional cause of action, Kovari alleges two related theories of liability: unconstitutional conditions of confinement and deprivation of medical care. Brevard moves for summary judgment on all claims. ECF No. 177.
A. LAW FOR SUMMARY JUDGMENT
Pursuant to Rule 56(a), the court must “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); Celotex Corp. v. Catrett,
The moving party bears the initial burden of demonstrating the absence of a genuine
issue of material fact. Celotex,
Glynn,
Moreover, “[c]redibility determinations, the weighing of the evidence, and the drawing
of legitimate inferences from the facts are jury functions, not those of a judge.” Anderson, 477
U.S. at 255. The non- moving party must, however, “set forth specific facts that go beyond the
‘mere existence of a scintilla of evidence.’” Glynn,
Paul Mercury Ins. Co.,
“In other words, to gra nt summary judgment the [c]ourt must determine that no reasonable
jury could find for the nonmoving party on the evidence before it.” Moss v. Parks Corp., 985
F.2d 736, 738 (4th Cir. 1993) (quoting Perini Corp. v. Perini Constr., Inc.,
B. LAW GOVERNING § 1983 CLAIMS
To survive summary judgment on the constitutional claims, Kovari must make a prima
facie case of a § 1983 violation. In order to state a cause of action under § 1983, a plaintiff
must allege that (1) the named defendant deprived him of a federal right, and (2) the defendant
did so under color of state law. Dykes v. Inmate Servs. Corp., No. 9:14-CV-3609-RMG-MGB,
CV 9:14-3609-RMG,
Kovari must establish § 1983 liability under Monell, and not the doctrine of respondeat
superior. Karn v. PTS of Am., LLC, No. CV GJH-16-3261,
Sept. 19, 2017) (citing Monell v. Dep't of Soc. Serv. of City of New York,
The Fourth Circuit has extended Monell ’s exclusive applicability to priv ate corporations as
well as municipalities. Estate of Alvarez v. Johns Hopkins Univ.,
Md. 2017) (citing Powell v. Shopco Laurel Co.,
Because Kovari has voluntarily dismissed his claims against Brevard employees in their
personal capacities, he must show Brevard, the employer, maintained unconstitutional policies
or customs. See, e.g., Karn v. PTS of Am., LLC, No. 16-CV-3261,
C. LAW GOVERNING TORT CLAIMS
As a preliminary matter, the court must decide which body of law governs Kovari’s tort claims. A district court located in Virginia must apply Virginia’s choice of law rules to
decide this issue. See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487 (1941). Virginia
applies the lex loci delicti, the law of the place of the wrong, to tort actions like this one. See,
e.g., Jones v. R.S. Jones and Assoc., Inc.,
Doe ,
A tort is any civil wrong or injur y; a wrongful act.” Buchanan,
However, given that Kovari alleges a continuing injury, arising out of persistent
conditions of confinement and denial of medical care, the place of injury is less clear. “Under
Virginia law, the ‘place of the wrong’ is the place ‘the last event necessary to make an [actor]
liable for an alleged tor t takes place.’” General Assur. of America, Inc. v. Overby – Seawell, 533
Fed. Appx. 200, 206 (4th Cir. 2013) (quoting Quillen v. Int'l Playtex, Inc.,
Co.,
For negligence, gross negligence, and intentional infliction of emotional distress, the
final element that completes the legal injury is the infliction of actual damage. To establish a
claim for either ordinary or gross negligence, a plaintiff must prove the existence of a duty, a
breach of that duty, causation in fact, proximate causation, and damages resulting from the
breach. Cole v. Eckerd Corp.,
Russo v. White,
United Land Corp. of Am.,
v. Leake, 140 Va. 438, 441, 125 S.E. 314, 315 (1924)). Similarly, in a negligent loss of
consortium case, Virginia law dictated that the injury was received when the plane crashed and
the spouse was lost, regardless of where the plane took off from or where the surviving spouse
was at the time of death. Kelley v. United States,
Finding these cases instructive, the court finds that that Kovari’s place of the wrong
would be the location where Brevard committed the final act that caused Kovari to experience
harm for the first time. However, the transport spanned multiple states and depending on
plaintiff’s theory of the case, defendant’s actions in different states may have given rise to
different claims. In a similar multi-state, multi-defendant tort case, a court in this district
recognized that Virginia’s impetus for applying lex loci delicti was “uniformity, predictability,
and ease of application.” Gilmore v. Jones,
The court finds Virginia substantive law applies in this case because the acts that gave
rise to Kovari’s physical and emotional harms first occurred in Virginia, as he was first picked
up by Brevard from Northwest Regional in Winchester, Virginia. Upon his pickup in Virginia,
Kovari alleges that he was first deprived of his medication, placed in the back of a cramped
van, and put in tight shackles. While the extent of his injury may have increased over the course
of the transport, due to the compounding effects of the denial of medical care and conditions
of the transport, the location of first inju ry is still Virginia. The apex of Kovari’s injury was
felt in Texas, but Virginia courts have repeatedly rejected the application of the test
propounded by the Second Restatement, asking which state has the “most significant
relationship” to plaintiff’s in jury. McMillian,
III. CONSTITUTIONAL DEPRIVATION
Kovari alleges constitutional claims pursuant to 42 U.S.C. § 1983 claiming two
violations of the Fourteenth Amendment: (1) unconstitutional conditions of confinement, and
(2) denial of medical care. The court has already found defendants were state actors acting
under the “color of law” for § 1983 purposes. ECF No. 36. Defendants are private companies
performing an “exclusive government function,” something that could not be done without
authorization from the state. Lugar v. Edmondson Oil Co., 457 U.S. 922, 939 (1982);
Correctional Servs. Corp. v. Malesko ,
The protections of the Due Process Clause of the Fourteenth Amendment apply to
pretrial detainees. Slade v. Hampton Roads Reg'l Jail,
1990) (citations omitted)). Both claims are addressed in turn below.
A. CONDITIONS OF CONFINEMENT Brevard seeks summary judgment on the conditions of confinement claim alleging that Kovari cannot demonstrate a genuine dispute of material fact that he suffered a serious injury, that Brevard maintains policies or customs maintaining unconstitutional conditions of confinement, that Brevard failed to train employees, and that any such conditions or training caused Kovari’s injury . ECF No. 177.
Kovari argues that the transport subjected him to conditions of confinement that were
cruel and unusual. Whether an inmate’s conditions of confinement amount to “cruel and
unusu al punishment” must be measured against “the evolving standards of decency that mark
the progress of a maturing society.” Estelle v. Gamble,
Md. Oct. 23, 2012) (describing two-prong test). The first prong is an objective inquiry, while the second is subjective.
Brevard claims Kovari cannot satisfy the objective prong by showing that the deprivation was sufficiently serious. “To be ‘sufficiently serious,’ the deprivation must be ‘extreme’—meaning that it poses a ‘serious or significant physical or emotional injury resulting from the challenged conditions,’ or ‘a substantial risk of serio us harm resulting from ...
exposure to the challenged conditions.’” Scinto v. Stansberry,
Palmer, 468 U.S. 517, 526-27 (1984)). Brevard specifically challenges Kovari’s ability to demonstrate injury that is “more than de minimis.” Robles v. Prince George’s Cty. Maryland , 302 F.3d 262, 269 (4th Cir. 2002). Specifically, it argues that Kovari’s allegations that the transport caused his high blood pressure fail the objective prong as a matter of law.
However, the court finds that Kovari presents sufficient evidence from which a jury
could be persuaded that he was denied “a basic human need” durin g the course of his
transport. De’Lonta v. Angelone ,
Md. Aug. 9, 2018) (recognizing constitutional injuries based on photographs and testimony
showing deprivation of mattress, mirror, clothing, and soap, as well as exposure to extreme
temperatures); Pellum v. Burtt, No. 9:05-3339-JFA-GCK,
20, 2008) (recognizing constitutional injuries due to “five - day stay” in a cell without a sleeping
mat or blanket, “proper ventilation,” control of the lights, or access to hygiene items, and
wher e plaintiff “was forced to use a styrofoam cup to relieve himself during the night”); Brown
v. Mitchell ,
Brevard also argues that Kovari is unable to demonstrate a sufficiently serious injury because the pain to his wrists, rashes, dizziness, and high blood pressure were temporary. ECF No. 177, at 24. In doing so, it misconstrues the constitutional inquiry to require a showing of actual harm, when courts have found risk of serious harm to satisfy the objective prong.
Kovari “need not show that [he] in fact suffered serious harm to prev ail on this prong because
the [Constitution] protects against future harm. Courts have plainly recognized that a remedy
for unsafe conditions need not await a tragic event.” Thompson v. Virginia,
Brevard also argues that Kovari’s claims fail to demonstrate causation. First, it claims that Kovari’s hypertension and sleep difficulties preceded the transport, and therefore can not have been caused by the transport. Second, it claims Dr. Vassallo’s testimony fails to unequivocally draw a causal relationship between the conditions of the transport and Kovari’s hospitalization in Houston. ECF No. 177, at 20. The court finds exacerbation of an underlying condition can constitute a cognizable injury and that a reasonable jury could find causation based on Dr. Vassallo ’s testimony . Vassallo Dep., ECF No. 175-15, at 49:3- 7 (“The effect of being held under those conditions on his blood pressure, under those stressful conditions on the blood pressure – what we know about blood pressure and stress is that stress increases blood pressure.”); Id. at 63:21- 65:21 (“And pain and heat, known cardiovascular disease, atheroscl erosis, high blood pressure, prediabetes are all risk…So the answer is that, when you are held in those kinds of conditions, it puts you at substantial risk of serious harm because you might have an elevation in your blood pressure for those days. You might have a myocardial infraction.”). Dr. Vassallo’s testimony also responds to Brevard’s contention that Kovari contributed to his own risk of future harm by noncompliance with his prescribed medication regime by saying that highly stressful situations, such as the transport, “may put him at more risk of a heart attack than two years of being intermittently compliant or noncompliant.” Id. at 65:6-13. Even if Kovari’s alleged injuries are not found to rise to the level of serious harm, Dr. Vassallo ’s testimony creates a genuine dispute about the risk of harm. She testifies that patients with hypertension who are denied their medication risk strokes, cardiac arrest, or death. Vassallo Rep., ECF No. 194-9, at 9. Whether the actual harm or the risk of future harm is “substantial” is a question of fact for the jury, but the court finds a genuine dispute of material fact as to the existence of constitutional injury. De’Lonta v.
Angelone,
Brevard also argues that Kovari fails to establish deliberate indifference under the
subjective prong. The court must assess whether Brevard subjectively acted with “‘deliberate
indifference to inmate health or safety,’ meaning that they actually knew of and disregarded
the inhumane nature of the confinement.” Scinto,
After showing an underlying constitutional violation, Kovari must also show an unconstitutional custom or practice to prevail on a Monell claim. These “may be found in ‘persistent and widespread ... practices of ... officials [which,] [a]lthough not authorized by written law, [are] so permanent and well-sett led as to [have] the force of law.’” Spell v.
McDaniel,
Comm'n,
Brevard claims that Kovari alleges no evidence of an unconstitutional written policy and no more than a few isolated instances of unconstitutional conduct insufficiently pervasive to constitute a custom. ECF No. 177, at 22-23. For his part, Kovari states that he alleges unconstitutional written policies, customs, and training. ECF No. 193, at 30. Specifically, Kovari points to Brevard’s written Manual that permit s the vehicle to drive for up to six days nonstop as long as the van is equipped with a sleeping berth for the drivers, but not the passengers, and that it permits overcrowded “cages” through high maximum occup ant restrictions. He also identifies Brevard’s business model, charging per prisoner per mile, as an unconstitutional written policy encouraging circuitous routes to charge for as many passengers as possible, driving through the night to maximize mileage per day, and operating without pre- planned routes to allow for flexibility to pick up more passengers. To demonstrate unconstitutional custom, Kovari also presents sworn statements from Brevard employees as well as internal communications at the company that recall erratic driving, urination into water bottles, dismissed medical complaints from passengers, and express orders not to take passengers to the hospital. The evidence is sufficient to create a genuine factual dispute from which a jury might find that Brevard did maintain unconstitutional policies and customs.
Finally, Kovari points to deficient training and omissions in rectifying problematic
practices to support his Monell claim. “[W]hen [entities] are on actual or constructive notice
that a particular omission in their training program causes [its] employees to violate citizens’
constitutional rights, the [entity] may be deemed deliberately indifferent if [it] choose to retain
that program.” Connick v. Thompson,
Whether Kovari raises sufficiently egregious and unjustifiable policies or practices contributing to unconstitutional conditions of confinement is a question for the jury. But the court finds factual disputes regarding the existence of unconstitutional polices and practices forecloses summary judgment at this stage. Brevard’s motion as to this claim is DENIED.
B. DEPRIVATON OF MEDICAL CARE Brevard also challenges Kovari’s deprivation of medical care claim, raising arguments substantially similar to those raised against the conditions of confinement claim. Namely, Brevard argues that Kovari is unable to establish a sufficiently serious medical need and cannot demonstrate Br evard’s deliberate indifference. ECF No. 177, at 25.
A Fourteenth Amendment claim of deprivation of medical care requires a showing that the plaintiff had a serious medical need for treatment and that the defendant officials acted with deliberate indifference to that need — that they knew of the need, knew that it presented a serious risk of harm if not addressed, and failed to respond reasonably to the risk. Estelle v.
Gamble
,
429 U.S. 97, 104 –05 (1976) (“deliberate indifference to serious medical needs of
prisoners constitutes the unnecessary and wanton infliction of pain ” ); Sever v. CEO of
Prisoner Transp. Servs., No. 7:10CV00406, 2010 WL 4824682, at *3 (W.D. Va. Nov. 22,
2010), aff'd sub nom. Sever v. CEO of Prisoner Transp. Am.,
This requires that Kovari show an objectively serious condition, subjective awareness by defendants of the need and a failure to provide reasonable care in light of the circumstances.
See Farmer v. Brennan,
Objectively, the medical condition must be serious. See Hudson v. McMillian, 503 U.S.
1, 9 (1992) (there is no expectation that prisoners will be provided with unqualified access to
health care). A serious medical need is “one that has been diagnosed by a physician as
mandating treatment or one that is so obvious that even a lay person would easily recognize
the necessity for a doctor’s attention.” Iko v. Shreve,
As with the conditions of confinement claim, Brevard claims that Kovari is unable to
show deliberate indifference to his medical needs. This subjective element first requires a
showing that defendant recognized a substantial risk of harm. Parrish v. Cleveland, 372 F.3d
294, 303 (4th Cir. 2004) (“[T]hey actually must have perceived the risk”) (citation omitted);
Oladokun v. Maryland, No. CIV.A. DKC-14-463,
Then, under the deliberate indifference prong, Kovari must show Brevard recognized
its response was in appropriate in light of that risk. This standard is more than “mere negligence
or even civil recklessness.” Jackson v. Lightsey ,
Finally, Brevard again argues that summary judgment is proper because, even if Kovari is able to show unconstitutional deprivation of medical care, he is unable to point to policies or customs fairly attributable to the private prison transport company that caused the violation.
Here, Kovari posits that Brevard maintains de facto policies not to include a medical professional or medical equipment on the transport, to dismiss passenger complaints of pain as “ruses,” and to avoid taking passengers to hospitals at all costs. He also reasserts policies and customs discussed in the conditions of confinement claim as practices propagated in deliberate indifference of the risk they pose to passenger health, such as limited restroom breaks, multi-day legs of the journey without a night to sleep, inadequate hygiene, and insufficient provisions of food and water. Finally, and of particular import to this claim, Kovari presents evidence of Brevard’s agent training curriculum to support his allegations that the medical training is rudimentary at best. He argues that the deficient training is a policy that recklessly permits transport officers to intake passengers when they are unqualified to evaluate individual fitness for travel and untrained to respond to medical emergencies that arise along the way. Kovari argues that an entity which knows passengers may be in their custody for days in stressful conditions but does not plan and prepare for medical contingencies is deliberately indifferent to the risk of harm. Kovari also presents the expert testimony of a former employee of the U.S. Marshals Service whose testimony supports the proposition that reasonable transport standards require employees to be trained to respond to medical needs. A jury could find, based on the totality of evidence proffered, Brevard’s policies unconstitutional.
In sum, Kovari’s constitutional claims are replete with factual disputes that defeat B revard’s motion for summary judgment.
IV. TORT CLAIMS Brevard challenges each of Kovari’s tort claims as a matter of law. Regarding the claim of negligence and gross negligence, Brevard claims that Kovari fails to establish it was owed a duty by the private prison transport company. ECF No. 177, at 30-31. Further, Brevard claims Kovari cannot demonstrate compensable injury justifying an award of damages. Id. at 31. As to the intentional affliction of emotional harm claim, Brevard claims a separate cause of action for emotional damages based on the same set of facts giving rise to his claim for physical damages is inappropriate. Id. at 32- 33. Further, it claims Kovari’s emotional damages are not cognizable under the law. Id. at 33-34.
A. NEGLIGENCE AND GROSS NEGLIGENCE
Central to both negligence and gross negligence is the existence of a duty of care owed
by defendant to plaintiff. “The elements of an action in negligence are a legal duty on the part
of the defendant, breach of that duty, and a showing that such breach was the proximate cause
of injury, resulting in damage to the plaintiff .” Blue Ridge Service Corp. of Va. v. Saxon Shoes,
Inc.,
630, 639,
Contrary to Brevard’s assertions, a prison transport entity does owe its charges a duty
of care beyond ordinary care owed anyone. Virginia law regularly recognizes the special duty
owed by one who exercises total dominion over another. See Quisenberry v. Huntington
Ingalls Inc.,
Brevard provides no legal citations to support its argument that Kovari has not
demonstrated a compensable injury, and the court finds no such grounds exist. Brevard
contends that to establish injury, Kovari must present expert testimony as to damages, and
that his expert, Dr. Susi Vassallo cannot establish causation for negligence. However, this is
not an appropriate issue for the court to determine as a matter of law. Heckenlaible v. Virginia
Peninsula Reg'l Jail Auth.,
B.
Brevard argues that intentional infliction of emotional harm is an inappropriate claim
to bring in this case because to do so would conflate Kovar i’s physical damages with emotional
damages. ECF No. 177, at 32. Under Virginia law, the general rule in tort cases is “that, absent
proof of physical injury or wanton or willful conduct, there can be no recovery of damages
for mental anguish, emotional di stress, or humiliation.” Sea – Land Serv., Inc. v. O'Neal, 224
Va. 343, 354, 297 S.E.2d 647, 653 (1982). However, in cases involving intentional torts,
recovery of damages for emotional suffering, such as humiliation and embarrassment, is
permissible. Id. Virginia law in no way restricts the applicability of intentional infliction of
emotional harm to nontactile conduct, nor does it proscribe allegations of emotional harm for
conduct giving rise to allegations for physical harm. Morrison v. Jordan, No. CIV.A 7:08-CV-
00643,
Brevard correctly states that actions for intentional infliction of emotional distress are
not favored in Virginia. Harris v. Kreutzer,
The court finds that Kovari does not create a factual dispute about severe emotional harm sufficient to survive a summary judgment motion. That Kovari suffered during the transport and perhaps continues to experience anxiety may be. However, he does not present any evidence to support his averments of difficulty sleeping, extreme anxiety, and persisting emotional trauma beyond his own testimony. In Russo , the court found plaintiff’s complaints that “she was nervous, could not sleep, experienced stress and ‘its physical symptoms,’ withdrew from activities, and was unable to concentrate at work” to be insufficiently severe.
Russo,
in “a laceration, concussion, momentary unconsciousness, and, most notably, cracked ribs , ”
yet the court dismissed Morrison’s claims of intentional infliction of emotional stress, finding
he did not sufficiently allege emotional harm. Morrison v. Jordan, No. CIV.A 7:08-CV-00643,
Accordingly, the court grants Brevard’s motion for summary judgment as to Kovari’s intentional infliction of emotional harm claim.
V. DECLARATORY JUDGMENT Brevard asserts that it is entitled to summary judgment on the issue of declaratory relief because Kovari has been released from defendants’ custody and the issue is therefore moot.
ECF No. 177, at 35. Kovari does not contest this and indeed confirmed he will not seek
declaratory relief if he prevails in this case. ECF No. 193, at 40. “To be justiciable under Article
III of the Constitution, the conflict between the litigants must present a ‘case or controversy’
both at the time the lawsuit is filed and at the time it is decided. If intervening factual ... events
effectively dispel the case or controversy during pendency of the suit, the federal courts are
powerless to decide the questions presented.” Ross v. Reed,
When an i nmate is dismissed from a prison system, “there is no longer a ‘substantial
controversy’ between parties having adverse legal interests, of sufficient immediacy and reality
to warrant the issuance of [injunctive or] declaratory relief.” See Inmates v. Owens, 561 F.2d
560, 562 (4th Cir.1977) (citing Golden v. Zwickler,
Griffin,
Kovari’s case is not mooted in its entirety, because he seeks monetary compensation. Williams,
Accordingly, the court GRANTS Brevard summary judgment on the issue of declaratory and injunctive relief.
VI. For the foregoing reasons, the court DENIES Brevard’s motion s for summary judgment as to all constitutional claims, finding genuine disputes of material facts for the jury to resolve. The court DENIES Brevard’s motions for summary judgment on the state law claims of negligence and gross negligence, but GRANTS summary judgment in favor of Brevard on the intentional infliction of emotional damages claim, finding insufficient evidence of severe emotional harm. Given that Kovari is no longer in federal, state, local, or private prison custody, the court finds no active case or controversy and GRANTS Brevard’s motion for summary judgment as to declaratory relief.
Additionally, the court DENIES Brevard’s motion to preclude the testimony of Dr. Vassallo. The court GRANTS in part and DENIES in part Brevard ’ s motion to exclude the testimony of Eric L. Clark and Kovari ’ s motion to exclude the testimony of Charles Hildebrand.
An appropriate Order will be entered.
Entered: May 18, 2020 Digitally signed by Michael F. Urbanski DN: cn=Michael F. Urbanski, o=Western District of Virginia, ou=United States District Court, email=mikeu@vawd.uscourts.gov, c=US Date: 2020.05.18 18:39:11 -04'00' Michael F. Urbanski Chief United States District Judge
Notes
[1] Harris County hired PTS of America, LLC to execute the extradition. For the purposes of this case, all three defendants are being treated as a single entity.
[2] Rule 702 states: 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.
[3] Dr. Vassallo relies on the contested industry standard spec ifically in addressing Brevard’s policies and procedures, which this court has held herein is outside the scope of her permissible testimony. Therefore, the risk of introducing these standards at trial is essentially obviated. Vassallo Rep. ECF No. 175-13, at 12.