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Date: 11-17-2021

Case Style:

Draeshund K. Magee v. United States of America

Case Number: 1:20-cv-00294-MHH-HNJ

Judge: MADELINE HUGHES HAIKALA

Court: UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA EASTERN DIVISION
On appeal from The

Plaintiff's Attorney: United States Attorney’s Office

Defendant's Attorney:

Anniston, AL - Federal Tort Claims Lawyer Directory


Description:

Anniston, AL - Federal Tort Claims lawyer represented defendant with filed a complaint pursuant to the Federal Tort Claims Act charge.



On August 6, 2021, the Magistrate Judge entered a report in which he
recommended that the Court deny Mr. Magee’s request for appointment of medical
experts, grant Mr. Magee’s motion to supplement the evidence, and grant the United
States’ motion for summary judgment. (Doc. 19). The parties were given 14 days
to file objections to the report and recommendation. (Doc. 19 at 18). Mr. Magee
FILED
2021 Sep-29 PM 12:36
U.S. DISTRICT COURT
N.D. OF ALABAMA
Case 1:20-cv-00294-MHH-HNJ Document 28 Filed 09/29/21 Page 1 of 8
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has filed three sets of objections, only one of which is timely. (Docs. 24).
1 Because
Mr. Magee’s second and third sets of objections (Docs. 25, 27) largely duplicate his
first set of objections, the analysis that follows resolves all of Mr. Magee’s
objections.
A district court “may accept, reject, or modify, in whole or in part, the findings
or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C). A
district judge must “make a de novo determination of those portions of the
[magistrate judge’s] report or specified proposed findings or recommendations to
which objection is made.” 28 U.S.C. § 636(b)(1); see also FED. R. CRIM. P. 59(b)(3)
(“The district judge must consider de novo any objection to the magistrate judge’s
recommendation.”). A district court’s obligation to “‘make a de novo determination
of those portions of the report or specified proposed findings or recommendations to
which objection is made,’” 447 U.S. at 673 (quoting 28 U.S.C. § 636(b)(1)), requires
a district judge to “‘give fresh consideration to those issues to which specific
objection has been made by a party,’” 447 U.S. at 675 (quoting House Report No.
94-1609, p. 3 (1976)). United States v. Raddatz, 447 U.S. 667 (1980) (emphasis in
Raddatz).
1 Mr. Magee’s objections were due August 20, 2021. His first set of objections, postmarked August
24, 2021, lack a signature date and certificate of service. (Doc. 24, p. 21). The objections may be
timely under the prison mailing rule. See Houston v. Lack, 487 U.S. 266, 270-72 (1988) (prisoner
pleadings are deemed filed at the time the prisoner delivers the pleading to prison or jail officials
to be mailed).

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In his objections, Mr. Magee requests appointment of a psychiatric expert to
help him litigate his medical-malpractice claim. (Doc. 24, pp. 2-4, 9, 12). On the
record in this case, Mr. Magee is not entitled to the appointment of a psychiatric
expert because his medical malpractice claim is directed to a shoulder injury. Under
Alabama law, a psychiatrist is not competent to testify about the standard of care for
treating post-reduction repair of a dislocated shoulder. Therefore, the Court
overrules that objection and denies Mr. Magee’s request for appointment of an
expert psychiatrist.
2
Mr. Magee argues that medical staff at FCI Talladega failed to provide
adequate care after a post-reduction repair of his dislocated shoulder because, when
he was discharged from the hospital on January 5, 2018, he was given instructions
to see an orthopedist in three weeks, but FCI’s medical staff did not arrange for the
follow-up visit. Mr. Magee fairly points out that, when he was discharged from his
initial shoulder procedure, Dr. Ruth provided “Home Instructions,” a form that an
emergency room nurse discussed with him. (Doc. 12, p. 332). Those instructions
state: “Return to ED or Follow up with your Primary Care Physician if feeling worse
or experiencing new symptoms. Follow up with Orthopedist, keep shoulder
2 The Court understands from his medical records that Mr. Magee struggles with anxiety. Mr.
Magee may believe that a psychiatrist would be able to offer opinions regarding his anxiety and
the extent to which his shoulder pain is linked to his anxiety. Because Mr. Magee’s medical
records do not support his claim that the medical care he received at FCI Talladega for his shoulder
was inadequate, Mr. Magee does not require a psychiatric expert.
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immobilizer in place until Ortho follow up.” (Doc. 12, p. 332). Mr. Magee
overlooks the fact that, when he returned to prison from the hospital, he immediately
reinjured his shoulder. (Doc. 12, p. 256). He returned to the emergency room. This
time, Mr. Magee saw Dr. Blanco. The instructions that Dr. Blanco provided state
that Mr. Magee was to “follow up with a doctor” if he had medical symptoms or
problems. (Doc. 12, p. 315). Dr. Holbrook and Dr. Lawrence at FCI Talladega
treated Mr. Magee after he returned to prison from his second emergency room visit,
so the medical staff complied with the instructions that Dr. Blanco provided.
3
Mr. Magee asks the Court to appoint Dr. Ponce and Dr. Ruth as medical
experts. Dr. Ponce and Dr. Ruth treated Mr. Magee. (Doc. 24, pp. 10, 12, 16-17,
19). The Magistrate Judge held that Mr. Magee could not satisfy his burden of proof
without expert testimony, and his “failure to come forward with expert medical
evidence sufficient to create a genuine issue of material fact with respect to the
elements of an Alabama Medical Liability Act claim” defeated his FTCA claim.
(Doc. 19, p. 13). The Magistrate Judge also refused Mr. Magee’s request for
appointment of an expert, finding that Mr. Magee’s “non-expert evidence is weak.”
3 Mr. Magee points to a record notation from Dr. Lawrence that his dislocation was “resolved,”
arguing that this notation is inconsistent with the medical evidence. (Doc. 24, p. 3; see Doc. 12,
pp. 140-141). But, Dr. Lawrence’s notation in a January 2019 pertains to the fact Mr. Magee’s
shoulder no longer was dislocated. Dr. Lawrence specifically noted that Mr. Magee reported
shoulder pain. (Doc. 12, p. 140).
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(Doc. 19, pp. 14-15) (citing Federal Rule of Evidence 706; Gillentine v. Correctional
Medical Services, Inc., 556 Fed. Appx. 845, 846 (11th Cir. 2014)).
The Court agrees that, on the record in this case, expert opinions will not
advance Mr. Magee’s medical malpractice claim. The rule regarding expert
testimony in medical malpractice actions under Alabama law is this:
As a general rule, in a medical-malpractice action, the plaintiff is
required to produce expert medical testimony to establish the applicable
standard of care and a breach of that standard of care, in order to satisfy
the plaintiff's burden of proof. See Allred v. Shirley, 598 So. 2d 1347,
1350 (Ala. 1992) (citing Tuscaloosa Orthopedic Appliance Co. v.
Wyatt, 460 So. 2d 156, 161 (Ala. 1984)).
However, “[a]n exception to this rule exists
‘in a case where want of skill or lack of care is so apparent ... as to
be understood by a layman,
and requires only common knowledge and experience to understand it
.’” Wyatt, 460 So. 2d at 161 (quoting Dimoff v. Maitre, 432 So. 2d
1225, 1226–27 (Ala. 1983)). This Court has recognized the following
situations as falling within this exception:
“‘1) where a foreign instrumentality is found in the
plaintiff's body following surgery; 2) where the injury
complained of is in no way connected to the condition for
which the plaintiff sought treatment; 3) where the plaintiff
employs a recognized standard or authoritative medical
text or treatise to prove what is or is not proper practice;
and 4) where the plaintiff is himself or herself a medical
expert qualified to evaluate the doctor's allegedly
negligent conduct.’ ”
Allred, 598 So. 2d at 1350 (quoting Holt v. Godsil, 447 So. 2d 191,
192–93 (Ala. 1984)(citations omitted in Allred)).
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Anderson v. Alabama Reference Laboratories, 778 So. 2d 806, 811 (Ala. 2000).
Conversely, where, as here, a plaintiff’s medical records contain plain language, are
easily understood by a layman, and require only common knowledge and experience
to understand them, a judge may review the records without the assistance of an
expert to evaluate a motion for summary judgment.
Mr. Magee’s medical records show that in the two years following his
shoulder procedures, he requested medical attention fairly frequently, mostly for
concerns unrelated to his shoulder. When he complained of shoulder pain, he
typically received treatment, including a referral to an orthopedist. He sometimes
refused treatment that was offered to him or missed an appointment. (Doc. 12, pp.
120-25). Dr. Holcomb’s efforts to order the MRI that an orthopedist recommended
were complicated by COVID. Mr. Magee’s most persistent complaints of shoulder
pain occurred in the month before he was transferred from FCI Talladega to another
BOP facility. (See generally Docs. 12, 15). On this record, expert testimony will
not advance Mr. Magee’s effort to establish a breach of the standard of care.
Mr. Magee asks the Court to consider recent medical records from the facility
where he currently is housed. (Doc. 29). He reports that since arriving at his new
facility in early 2021, he has received “x-rays and physical examination, which is
the same treatment Defendant(s) (F.C.I.- Talladega) denied Magee from Jan. 5, 2018
thru Jan. 31, 2021.” (Doc. 27, p. 2). Mr. Magee’s medical records contradict his
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assertion that the medical staff at FCI Talladega refused him physical exams or xrays of his shoulder. Mr. Magee also reports that, at his new facility, he was referred
for an MRI despite the Delta variant of COVID, and he received an MRI on August
31, 2021. (Doc. 27, p. 2). Given the complications of the COVID-19 pandemic, on
the record in this case, the Court will not second-guess scheduling decisions that FCI
Talladega medical staff had to make when seeking outside treatment for Mr. Magee.
4

Because the plain information in Mr. Magee’s medical records contradict his
contention that the medical treatment he received at FCI Talladega following the
January 2018 procedures to repair his dislocated shoulder were inadequate and
constituted a breach of the standard of care, the Court will not appoint an expert
pursuant to Rule 706 of the Federal Rules of Evidence. Mr. Magee’s records are
consistent with Dr. Holbrooke’s general description of Mr. Magee’s medical
treatment in the two years following his shoulder procedures. (Doc. 12, pp. 29-35).
Some of the supplemental medical records that Mr. Magee submitted are duplicates
of medical records that the United States supplied, and none of the supplemental
records suggests that medical staff at FCI Talladega refused him adequate medical
care when he complained of shoulder pain. Mr. Magee made two trips to the
4 The challenges that COVID has created run the gamut. In 2019 and 2020, many prisons were on
lockdown. When a vaccination for COVID became available early in 2021, prisons gained more
flexibility, though that flexibility was curtailed when the Delta variant of the COVID virus began
spreading. Mr. Magee’s medical records indicate that FCI Talladega was on lockdown during
several periods in which he sought medical treatment.
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emergency room in 2018, and he saw an orthopedist early in 2020 based on a referral
he received late in November of 2019 when he complained of shoulder pain. Delays
in treatment in 2020 were the product of COVID restrictions. Because Mr. Magee’s
medical records demonstrate that the medical staff at FCI Talladega did not breach
the standard of care, Mr. Magee’s FTCA claim against the United States fail as a
matter of law.

Outcome: Having reviewed the materials in the Court’s electronic docket, including the
report and recommendation, Mr. Magee’s objections, and Mr. Magee’s medical
records, the Court overrules Mr. Magee’s objections and accepts the Magistrate
Judge’s recommendation. Accordingly, the Court denies Mr. Magee’s requests for
appointment of psychiatric and medical experts. The Court grants Mr. Magee’s
request to supplement his FCI Talladega medical records. (Doc. 15). By separate
order, the Court will grant the defendant’s motion for summary judgment.

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