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Wichterman v. City of Philadelphia

United States District Court, E.D. Pennsylvania

June 19, 2019

DAVID WICHTERMAN, JR., as Administrator of the Estate of Daniel Wichterman, deceased, Plaintiff,


          DuBois, J.


         On January 30, 2015, Daniel Wichterman died while in custody of the Philadelphia Police Department. Wichterman allegedly suffered an opioid overdose in a holding cell at the City of Philadelphia Police Detention Unit (“PDU”) after being arrested on suspicion of driving under the influence of narcotics. Plaintiff David Wichterman, Jr., the Administrator of the Estate of Daniel Wichterman, and his brother, commenced this action on November 9, 2016. The following claims are asserted: a Fourteenth Amendment claim under 42 U.S.C. § 1983 against Police Correctional Officers Justin Avery, William Gwalthney, and Lavern Joyner, and a nurse stationed at the PDU, Tairu Wahabu, R.N.; a Monell claim against the City of Philadelphia; and state law negligence claims against Wahabu and Corizon Health, Inc (collectively, the “Corizon defendants”).

         Presently before the Court are Corizon defendants' (1) Motion to Exclude the Expert Testimony of Robert L. Cohen, M.D., and (2) Motion to Exclude Testimony of Sarah E. Wakeman, M.D. For the reasons that follow, the Motions are granted in part and denied in part.

         II. BACKGROUND[1]

         A. Accident, Arrest, and Intake

         On January 30, 2015, Daniel Wichterman was arrested on suspicion of driving under the influence (“DUI”) after he was involved in a minor automobile accident. City Def. Stmt. of Undisputed Material Fact (“City SUMF”) ¶¶ 7, 20. At approximately 3:00 p.m., two police officers, Officer Gregory Sulock and Officer Richard Greger responded to the accident. Id. at ¶ 8. Wichterman informed both Sulock and Greger that he had taken heroin. Id. at ¶¶ 12, 17. Both officers observed that Wichterman appeared intoxicated but testified that they did not believe he was in a state of overdose. Id. at ¶¶ 13, 14, 15, 21, 23. After Officer Greger determined that there was probable cause for a DUI charge, Wichterman was transported to the PDU. Id. at ¶¶ 20, 24; Corizon Stmt. of Undisputed Material Facts (“Corizon SUMF”) ¶ 7.

         Wichterman arrived at the PDU at approximately 5:33 p.m., on January 30, 2015, at which point he was searched and escorted to the Accident Investigation Division (“AID”). City SUMF ¶¶ 28, 39. The AID Officer on duty, Officer Patrick Farrell, interviewed Wichterman from approximately 5:40 p.m. to 6:12 p.m. Id. at ¶ 40; Pl.'s Statement of Facts (“Pl. SOF”) ¶ 67. Farrell observed that Wichterman had constricted pupils, slow speech and movements, and a raspy voice. City SUMF ¶ 41. After conducting the interview, Farrell walked Wichterman to the nurse's station so that a blood draw could be performed to test for narcotics. Id. at ¶ 46.

         B. Medical Screening by Nurse Wahabu

         The nurse stationed at the PDU on January 30, 2015, was defendant Tairu Wahabu, who was employed by defendant Corizon Health, a private company which provides medical services to the PDU. Id. at ¶ 5-6; Corizon SUMF ¶ 2. Wichterman's intake with Wahabu was recorded on video. Corizon SUMF ¶ 4.

         Wahabu began Wichterman's evaluation by taking his vital signs which Wahabu testified were “perfect.” City SUMF ¶¶ 50, 51. Next, Wahabu drew Wichterman's blood. Farrell Dep. 90:21-91:23; City SUMF ¶ 72. Officer Farrell, who was present for the blood draw, retrieved the blood sample and returned to his office. Farrell Dep. 96:14-97:15.

         After Officer Farrell left, Nurse Wahabu began conducting Wichterman's intake screening by filling out a “receiving screening form” as required by Corizon policy. Pl. SOF ¶ 76. In response to question 4 on the screening form which asked: “Does the inmate appear to be under the influence of, or withdrawing from[, ] drugs or alcohol[?]”, Wahabu circled “Y” for “yes.” Id. at ¶ 78. Next to that question Wahabu wrote the word “Klonopin.” Id. Wahabu testified that, despite his affirmative answer to question 4, Wichterman did not actually appear to be under the influence of any drug. Id. at ¶ 79. Wahabu explained that he answered “yes” to that question because Wichterman told him he took Klonopin for his anxiety. Wahabu Dep. 174:9- 18. Wahabu also answered “yes” to questions 6 and 7 which asked about treatment for health conditions including use of prescription medication. Pl. SOF ¶ 81.

         For the remaining questions Wahabu selected “N” for “no.” Id. at ¶¶ 82-83, Ex. 12A. However, Wahabu did not circle responses for each question individually. Wahabu circled “N” individually in response to questions 8 through 13 but simply drew a single straight line through all “N” responses for questions 14 through 21, including question 15, which asked “Do you use drugs?” Id. at ¶¶ 82-83, Ex. 12A. Wahabu testified that he asked Wichterman whether he used “any street drugs - heroin, crack, everything, ” and Wichterman answered “no, he hadn't used anything like that.” Id. at ¶ 86.

         In contrast to Farrell's observations, Nurse Wahabu testified that he saw no signs of physical illness or intoxication when Wichterman was in his presence. Id. at ¶ 90. Wahabu explained that if he noticed any of the symptoms described by Farrell - constricted pupils, lethargic speech, lethargic movements, or a raspy voice - in a detainee like Wichterman, he would have immediately sent the detainee to the hospital. Id. at ¶ 95.

         Wahabu was familiar with how to recognize and treat an opiate overdose. Id. at ¶ 23. Narcan, a drug that is often successful in reversing the effects of an opiate overdose, was available in the PDU at the time of Wichterman's arrest. Id. Wahabu testified that he had experience treating detainees with Narcan and estimated that he had administered Narcan approximately fifty times to detainees who appeared to be overdosing. Id.

         As the PDU's registered nurse, Wahabu has discretion to determine where detainees are sent after conducting their intake screening. City SUMF ¶ 59. At the end of Wichterman's screening, Wahabu decided that neither emergency medical care nor specialized observation was necessary and sent Wichterman to the general PDU population. Id. at ¶ 60.

         C. The Cell Block

         After the medical screening, Wichterman arrived on the cell block at approximately 6:17 p.m. Pl. SOF ¶ 121; City SUMF ¶ 62. The two Police Correctional Officers (“PCOs”) assigned to the cell block at the time were defendants Justin Avery and William Gwalthney. City SUMF ¶ 64. Both Avery and Gwalthney testified that they had no concerns about Wichterman's health or safety at the time he arrived on the cell block. Id. at ¶¶ 71, 73. Wichterman was placed in cell #2 with another detainee, Michael Panichelli. Id. at ¶ 74. From 6:17 to 10:15 p.m. Wichterman remained in his cell. During those four hours Avery and Gwalthney walked up and down the corridor a number of times, but neither physically entered Wichterman's cell until after 10:00 p.m. Id. at ¶¶ 76, 79.

         Defendant PCO Lavern Joyner was also on duty at the time, working as a fingerprint technician. Id. at ¶ 65. Joyner attempted to retrieve Wichterman for fingerprinting twice, once at 8:26 p.m. and again at 8:56 p.m. Id. at ¶¶ 80, 83. Joyner testified that when she attempted to wake Wichterman she opened the door to cell #2, called his name once or twice, received no response, shut the door, and left the cell block. Id. at ¶ 81. She further testified that she believed that Wichterman was sleeping and did not have any concerns about Wichterman's health or safety. Id. at ¶ 82. In contemporaneous notes Joyner wrote that Wichterman was “knocked out, ” “would not move, ” and that he was “sleeping hard.” Joyner Dep. 40:13-41:3, 45:5-20.

         At approximately 10:15 p.m., Wichterman's cellmate, Panichelli informed Gwalthney that something might be wrong with Wichterman. City SUMF ¶ 91. Avery and Gwalthney entered Wichterman's cell, attempted unsuccessfully to wake him, and then called Wahabu for help. Id. at ¶¶ 93, 94. At 10:18 p.m. Wahabu arrived at Wichterman's cell, began CPR, and instructed the PCOs to call 911. Id. at ¶ 94-95.

         Wichterman was pronounced dead at 11:31 p.m. Id. at ¶ 97. His Autopsy and Toxicology Report stated that his cause of death was drug intoxication as a result of an opioid overdose. Id. at ¶ 98; Corizon SUMF ¶ 25. The parties dispute whether Wichterman consumed the fatal dose of heroin before or after arrival at the PDU. Corizon SUMF ¶ 26.

         D. Procedural Background

         On November 10, 2017, plaintiff, as Administrator of Wichterman's Estate, filed an Amended Complaint (Document No. 29). The Amended Complaint asserts claims of (1) deliberate indifference against the individual defendants under the Eighth and Fourteenth Amendments, (2) violations of Wichterman's rights under the Eighth and Fourteenth Amendments by the City of Philadelphia and Corizon Health, and (3) and state law negligence claims against Corizon defendants. The Eighth Amendment claims were later abandoned on the ground that Wichterman, as a pretrial detainee, had no rights under the Eighth Amendment. Pl. Consol. Resp. 2 n. 2. Likewise, Plaintiff has abandoned his municipal liability and corporate negligence claims against Corizon as set forth in Counts Two and Three of the Amended Complaint. Pl. Consol. Resp. 2 n. 3. However, he maintains his negligence claim for vicarious liability against Corizon based on Wahabu's conduct. Id.

         On May 30 and May 31, 2018, respectively, Corizon defendants filed a Motion to Exclude the Expert Report of Robert L. Cohen, M.D, and a Motion to Exclude the Expert Testimony of Sarah E. Wakeman, M.D. (Document Nos. 37, 39). Both Motions are fully briefed and ripe for decision.


         Federal Rule of Evidence 702 provides:

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 ...

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