United States District Court, E.D. Pennsylvania
DAVID WICHTERMAN, JR., as Administrator of the Estate of Daniel Wichterman, deceased, Plaintiff,
CITY OF PHILADELPHIA, CORIZON HEALTH, POLICE CORRECTIONAL OFFICER JUSTIN AVERY, POLICE CORRECTIONAL OFFICER WILLIAM GWALTHNEY, TAIRU WAHABU, RN, and, OFFICER JOYNER, BADGE NO. 114, Defendants.
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
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.
Accident, Arrest, and Intake
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”) ¶
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.
Medical Screening by Nurse Wahabu
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.
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.
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.
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
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.
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.
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.
The Cell Block
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.
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.
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.
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.
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
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.
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