United States District Court, D. New Hampshire
John R. Griffin, Jr., Plaintiff,
Hillsborough County Department of Corrections, et al., Defendants.
Opinion No. 2015 DNH 130
STEVEN J. McAULIFFE, District Judge.
Pro se plaintiff, John Griffin, claims that while he was held in the Hillsborough County House of Corrections ("HCHOC") as a pre-trial detainee, defendants denied him constitutionally adequate medical treatment for a recurrent kidney stone and persistent swelling and pain in his right knee. He also alleges that defendants are liable for medical malpractice under state law. And, finally, Griffin asserts that one of his treating physicians retaliated against him by deliberately providing substandard medical care, in violation of his First Amendment rights.
Pending before the court are Griffin's objection to the Report and Recommendation (document no. 170), in which the Magistrate Judge recommended that the court grant defendants' motions for summary judgment. Also pending are Griffin's Motion for Federal Judicial Review of [His] Objection to Defendants' Motions for Summary Judgment, as well as his motion for Court-Appointed Expert Witness and his Objection to the Magistrate Judge's Decision denying Griffin's request to appear as his own medical expert.
I. The Report and Recommendation.
Although defendants moved for summary judgment on several grounds, the Magistrate Judge based her recommended disposition largely on only one: the fact that Griffin failed to disclose a medical expert witness. Griffin was long aware of his need for an expert witness and, in fact, was granted two extensions of time within which to make that disclosure. Moreover, the Magistrate Judge ordered the HCHOC to assist Griffin in his efforts to secure an expert by filing a "notice, noting whether a printed directory, commercial yellow pages, or other similar publication, listing the addresses of health care providers in New Hampshire, may be available to Griffin." Order dated December 8, 2014 (document no. 104). HCHOC complied with that directive. See Notice of Compliance (document no. 105). Nevertheless, Griffin failed to disclose an expert witness. And, his challenge to the state-imposed requirement that he support his claims with expert medical testimony proved unsuccessful, as did his attempt to act as his own medical expert. See Order dated March 30, 2015 (document no. 142). See also Order dated May 20, 2015 (document no. 165).
The substance of the Magistrate Judge's thorough and thoughtful opinion need not be recounted. It is sufficient to note that she recognized that each of Griffin's claims - medical malpractice, deliberate indifference to serious medical needs, and retaliation (in the form of deliberately providing substandard medical care) - turns upon proof that defendants were, at least, negligent in providing his medical care. It is wellestablished that, in circumstances such as those presented by Griffin, expert medical opinion testimony is essential; without it, his claims cannot proceed.
Absent testimony from a medical expert, Griffin's state law malpractice claim is foreclosed by New Hampshire law, which provides that, "In any action for medical injury, the plaintiff shall have the burden of proving by affirmative evidence which must include expert testimony of a competent witness or witnesses" three essential elements: (1) the standard of reasonable care; (2) defendant's breach of that standard; and (3) proximate causation. N.H. Rev. Stat. Ann. ("RSA") 507-E:2 (emphasis supplied). See, e.g., Smith v. HCA Health Services of N.H., 159 N.H. 158, 163 (N.H. 2009)("The plaintiffs' claims are actions for medical injury that require expert testimony, and the trial court properly exercised its discretion in ruling that the plaintiffs did not proffer an expert qualified to testify as to all of the required elements of the plaintiffs' case. Therefore, the plaintiffs would be unable to meet their burden of proof at trial, and the defendant is entitled to judgment as a matter of law."). See also Goudreault v. Kleeman, 158 N.H. 236, 245 (2009) ("Expert witness testimony is required to establish a prima facie medical negligence case.") (citing RSA 507-E:2).
Griffin's First Amendment retaliation claim is similarly precluded by the lack of expert medical witness testimony, since an essential element of that claim requires proof that he received substandard medical care. See, e.g., Boudreau v. Englander, 2010 WL 2108219 at *4, 2010 DNH 088 (May 24, 2010) ("Given the lack of expert medical testimony supportive of [plaintiff's] view that the care he received was substandard, he cannot, as a matter of law, carry his burden of proof with regard to the second element [of his First Amendment retaliation claim]. And, even if the care [plaintiff] received could be viewed as adverse, ' there is no evidence in the record to support even the inference that defendants engaged in such conduct in order to retaliate against [plaintiff] for having exercised his constitutional rights.") (citation omitted). So it is in this case.
Finally, as to his Fourteenth Amendment deliberate indifference claim, Griffin bears an even higher burden. As this court has previously observed:
[I]t is well-established that [a constitutional] medical mistreatment claim cannot be premised on a theory of simple negligence or even a clear case of medical malpractice. Rather, to constitute a violation of the [Constitution], a medical care provider's conduct must go well beyond negligence in diagnosing or treating a prisoner's medical condition. See Estelle v. Gamble, 429 U.S. 97, 105-06 (1976). Similarly, a constitutional violation does not occur merely because a prisoner disagrees with a medical professional's decisions regarding the proper course of medical treatment. See, e.g., Ruiz-Rosa v. Rullan, 485 F.3d 150, 156 (1st Cir. 2007) ("[S]ubstandard care, malpractice, negligence, inadvertent failure to provide care, and disagreement as to the appropriate course of treatment are all insufficient to prove a constitutional violation."); Watson v. Caton, 984 F.2d 537, 540 (1st Cir. 1993) ("The courts have consistently refused to create constitutional claims out of disagreements between prisoners and doctors about the proper course of a prisoner's medical treatment, or to conclude that simple medical malpractice rises to the level of cruel and unusual punishment.").
Instead, to violate the [Constitution], the "care provided must have been so inadequate as to shock the conscience, " Feeney v. Corr. Med. Servs., 464 F.3d 158, 162 (1st Cir. 2006) (citations and internal punctuation omitted), or it must have "constitute[d] an unnecessary and wanton infliction of pain or [been] repugnant to the conscience of mankind, " Estelle, 429 U.S. at 105-06 (citations and internal punctuation omitted).
Brown v. Englander, 2012 WL 1986518, at *2-3, 2012 DNH 095 (D.N.H. June 1, 2012). The medical treatment provided to Griffin appears to have been fairly standard, and certainly was not so obviously outrageous or malicious that a lay trier-of-fact could reasonably conclude that it violated Griffin's constitutionally protected rights. Consequently, he was required to provide expert medical testimony to support his claim. He failed to ...