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McDonald v. Wexford Health Sources, Inc.

United States District Court, N.D. Illinois, Eastern Division

April 7, 2016



          JOAN B. GOTTSCHALL, District Judge.

         In this case, plaintiff Donald McDonald, who is proceeding with the assistance of recruited counsel, challenges the care that Stateville Correctional Center provided for his high cholesterol and chronic lower back pain. After the court denied the defendants' motion for summary judgment and set a trial date, the defendants sought leave to reopen expert discovery after learning that their expert, Dr. Scott Kale, had died. Based on Dr. Kale's death, the court struck the trial date and set a briefing schedule on McDonald's promised Daubert motion directed at Dr. Kale, reasoning that any new expert's testimony would have to align with Dr. Kale's previously disclosed opinions and that it would be inefficient to procure a new expert before determining if Dr. Kale's opinions were proper. For the following reasons, McDonald's motion to bar Dr. Kale is granted in its entirety.

         I. BACKGROUND

         A. The Summary Judgment Ruling

         The court assumes familiarity with its opinion denying the defendants' motion for summary judgment. (Dkt. 199.) In sum, McDonald filed a grievance in 2008 complaining that the medications (niacin and gemfibrozil, which is also sold under the brand name Lopid) given to treat his hyperlipidemia (high cholesterol) were ineffective and had significant side effects, that his low-density lipoprotein ("LDL") cholesterol remained elevated, that he had atherosclerosis of the aorta (a type of heart disease, diseasemanagement/cardiology/diseases-of-the-aorta/), and that he was experiencing severe pain in his joints and near his kidneys.[1] The court found that the evidence cited by McDonald in opposition to the defendants' motion for summary judgment regarding the treatment (or lack thereof) provided for his hyperlipidemia and back pain was "easily sufficient to withstand [the defendants' motion for] summary judgment." (Dkt. 199 at 18.)

         Among other things, the court found that evidence supported McDonald's claim that Wexford Health Services, which provides medical care for Stateville inmates, had a practice of avoiding non-formulary medications and had adopted a cholesterol treatment protocol that Dr. Nicholas Rizzo (McDonald's expert) believed did not comport with the medically accepted standard of care. The court also found that evidence supported McDonald's contentions that:

[Wexford physician] Dr. Zhang responded to McDonald's complaints about the side effects of niacin [that had been prescribed for McDonald's hyperlipidemia] by writing him up for non-compliance with his prescribed medication, forcing him to choose between discipline and what he characterized as severe, painful side effects. [Wexford physician] Dr. Ghosh believed that non-formulary medications were "fancy" and generally avoided prescribing them; a jury could find that he followed this practice even if the formulary options were medically inappropriate.

( Id. ) In addition, the court noted that Dr. Rizzo had "articulated serious and colorable concerns about the medications prescribed for McDonald's hyperlipidemia, including the use of niacin, as well as the lack of treatment provided for McDonald's back condition." ( Id. )

         B. Physical Therapy Prescribed to McDonald and Opinions of Wexford Doctors Regarding Treatment for Hyperlipidemia

         The defendants do not dispute that, as noted by McDonald, Wexford's Dr. Ghosh opined that "cholesterol lowering medication should be prescribed if you have atherosclerosis." (Ghosh Dep., Dkt. 166-2, at 27.) They also do not dispute that Dr. Arthur Funk, Wexford's designated corporate representative, testified at his deposition that elevated LDL cholesterol levels increase the risk for heart attack and stroke. And they do not dispute that Dr. Ghosh and Dr. Zhang (who was primarily responsible for McDonald's care during her time at Stateville) did not ensure that McDonald received physical therapy for his back pain, which was linked to degenerative disc disease that was diagnosed in March 2009. Instead, McDonald began physical therapy in late 2012, after Dr. Ghosh and Dr. Zhang left Wexford.

         C. Dr. Kale's Expert Report

         Dr. Kale received his medical degree in 1976 and was board certified in internal medicine in 1980. (Dkt. 223-3, Kale Curriculum Vitae.) During his deposition, Dr. Kale testified that in September 2011, he "became sick" and "was unable to continuing seeing patients, " was on "paid disability, " and that "since 2012 or so, " after he "recovered enough to start reading again, [he] started reviewing medical records" and reinstated his practice of serving as an expert witness. (Dkt., 223-2, Kale Dep., at 14-15.)

         Dr. Kale did not examine McDonald. Instead, he formulated his opinion based on a review of records: the amended complaint and answer, McDonald's deposition transcript and exhibits, transcripts and exhibits from depositions of Wexford physicians (Dr. Arthur Funk, Dr. Liping Zhang, and Dr. Parthasarathi Ghosh), the transcript and exhibits from the deposition of McDonald's expert, Dr. Rizzo, McDonald's medical records through May 13, 2014, and "selected portions of the 2008 and 2009 corporate preferred drug list." (Dkt. 223-1, Kale Expert Report, at 1.) Focusing on McDonald's hyperlipidemia and back pain, [2] Dr. Kale opines in his report[3] that:

• McDonald's back pain dating back to 2009 was "mild" and "related to weight lifting exercises and not to medications" because a kidney ultrasound and blood work showed "that he had completely normal kidney function";
• Wexford doctors "responded appropriately" to McDonald's complaints of "subjective low back pain with appropriate medical remedies of analgesia, which he sometimes took and sometimes did not, as well as providing recommendations for reasonable physical therapy";
• McDonald did not need an MRI or any "special testing" other than an X-ray that he received, or a referral to a specialist because "[h]e had no neurologic signs or symptoms that would have justified" further tests or treatment;
• "no evidence" suggests that Wexford created or condoned any policy, practice or custom that caused McDonald to receive inadequate medical care;
• Stateville Medical Director Dr. Ghosh did not violate the standard of care and "Dr. Rizzo's opinion that Dr. Ghosh refused to address plaintiff's medical concerns, or that he improperly dealt with plaintiff's grievances, is unfounded" because in Dr. Kale's opinion, "to the extent of his limited involvement, Dr. Ghosh did not deviate from the standard of care, and exercised prudent medical judgment";
• Dr. Zhang's treatment of McDonald's hyperlipidemia and chronic back pain and the medication she prescribed were "within the standard of care" and an exercise of reasonable medical judgment; and
• "Dr. Rizzo's opinions concerning [McDonald's] resulting side effects as a result of Dr. Zhang's medical decisions are pure speculation on his part, " Dr. Rizzo's opinions criticizing the care provided to McDonald "are simply differences in medical judgment rather than quality and intensity of the care that was required by [McDonald] in relation to the many complaints that [McDonald] made, " and Dr. Rizzo's "conclusion that any harm resulted from these differences in judgement [sic]... is purely and utterly speculative."

( Id. at 3.)

         D. Dr. Kale's Deposition Testimony

         1. Dr. Kale's Testimony About McDonald's Hyperlipidemia

         At his deposition, Dr. Kale stated (among other things) that he did not recall being aware that McDonald experienced any "unwelcome side effects" from medications prescribed by Dr. Zhang. (Kale Dep., Dkt. 223-2, at 19.) He also testified that while McDonald suffered from myalgia after he started taking niacin, niacin does not cause "aches and pains." ( Id. at 24, 29.)

         Dr. Kale opined that "any level of cholesterol" could be characterized "as mild, high, [or] moderate." ( Id. at 20.) He also testified that the importance of treating hyperlipidemia by "simply giving a drug because there's high cholesterol" is "less clear" than treating high cholesterol if there are "associated risk factors." ( Id. at 20-21.) Dr. Kale stated that there is "no urgency" to treat LDL cholesterol that is over 300, even for patients diagnosed with atherosclerosis of the aorta, and that LDL levels exceeding 300 do not require cholesterol-lowering medication. ( Id. at 22-23.) In support, he explained that "[t]he general notion that cholesterol is a harmful molecule is one which is generally acknowledged by the medical profession to be true. In fact, it's based upon very shoddy evidence that that's the case." ( Id. at 20-21.) Instead, according to Dr. Kale, no "empirical" evidence links high cholesterol to atherosclerosis of the ...

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