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He remained on the ventilator until November 1, , when the ventilator was removed after his condition deteriorated. Michael died on November 3, The cause of death was identified as diffuse alveolar damage and aspiration pneumonia due to his seizure disorder.


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Plaintiff Erma Woodhull, Michael's mother, was appointed the personal representative of the estate of her son by the Allegan County Probate Court on June 25, These defendants filed a Notice of Removal on March 24, Plaintiff later stipulated to the dismissal of the claims against the Sheriff's Department, which was dismissed from the action with prejudice in an order entered on May 3, docket no. On July 1, , plaintiff filed an amended complaint docket no.

Plaintiff's amended complaint also added as defendants The Family Outreach Center and Cornerstone Community Health Services, as well as other individuals involved in her son's care at the jail. Plaintiff later agreed to the dismissal of the claims against Correctional Medical Systems, Inc. Plaintiff's claims against defendant C. Symko have also been dismissed, for lack of service docket no. Plaintiff's amended complaint asserts claims against the CMS defendants for violation of 42 U. As relief, plaintiff seeks both compensatory and punitive damages.

Plaintiff also seeks declaratory relief that Michael's constitutional and state law rights were violated. In addition, plaintiff seeks injunctive relief requiring the defendants "to change their policies and procedures and training regimen so that similar violation will not and cannot recur. It is noted that although the amended complaint demands injunctive relief requiring changes at the jail, Michael Woodhull, the alleged victim of the claimed constitutional violation, is deceased and will therefore not be subjected to any future violations.

Nor do the pleadings assert the claims of any other plaintiffs who are live residents of the jail. In short, the basis for the demand for injunctive relief escapes the court. On December 22, , several months after she had filed this action, plaintiff also filed a second action in state court arising out of these same events. In that action, plaintiff asserted malpractice claims against the CMS defendants — and others — based on Michael Woodhull's treatment at the jail. Michigan's Kent County Circuit Court dismissed that action as time-barred by the two-year limitations period applicable to malpractice actions, M.

The dismissal of the claims as time-barred was affirmed on appeal. Woodhull v. Veeneman, No. The state court's decision in the malpractice action is a proper subject for judicial notice. See Granader v. Public Bank, F.

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On March 27, , this court issued an order declining to exercise supplemental jurisdiction over plaintiff's state law claims based on gross negligence because Michigan law was unclear regarding whether it would recognize gross negligence claims based on the same facts as time-barred malpractice claims which had been dismissed.

Therefore, the claims at issue in this case are now limited to the federal civil rights claims against the CMS defendants. In their briefs, the parties appear to assume, based on language contained in a district court decision, that gross negligence is indistinguishable from deliberate indifference, the standard applicable to plaintiff's federal claims.

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See Soles v. Ingham County, F. City of Detroit, 25 F. However, because the court has declined to exercise supplemental jurisdiction over plaintiff's claims based on gross negligence, those claims are not addressed on the merits. Discovery in this case was to have been completed by October 1, Plaintiff was to identify her experts by April 1, , and defendants by May 1, Plaintiff was to provide written reports of her experts by July 1, , and defendants were to do the same by August 1, The present motion was fully briefed as of December, Oral argument on the motion was scheduled and adjourned a number of times before it was ultimately held on June 29, For reason s which she has not explained, on June 19, , plaintiff filed an additional, second "affidavit" of one her prison medical experts, Corey Weinstein.

On June 26, , CMS filed a motion to strike this late-filed affidavit. Plaintiff failed to respond to the motion, which the court granted on July 18, docket no. Summary judgment is proper where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.

In evaluating a motion for summary judgment, the court must determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law. Liberty Lobby, Inc. Catrett, U. While inferences drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion, "[w]hen the moving party has carried its burden under Rule 56 c , its opponent must do more than simply show that there is some metaphysical doubt as to the material facts.

Zenith Radio Corp. Only factual disputes which may have an effect on the outcome of a lawsuit under the applicable substantive law are "material. Keys, 87 F. In addition, "[u]nder Fed.


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Because, as the CMS defendants have noted, plaintiff has submitted materials consisting of hearsay or double hearsay — which include the Office of Recipient Rights Investigative Report Plaintiff's Exhibit 12 and unsigned, unsworn transcripts of statements purportedly made by former Kent County jail inmates to a private investigator Plaintiff's Exhibits 14, 15, 16, and 17 — these materials must be disregarded. Plaintiff has not provided foundational facts establishing that the Office of Recipient Rights Investigative Report falls within Fed.

However, even if plaintiff were to establish the applicability of this exception, the report itself contains hearsay not falling within any recognized exception. As noted above, the court has also stricken the second expert affidavit of Dr. Corey Weinstein.

The court has therefore not considered this affidavit, dated June 13, In addition, however, both sides have submitted evidence which includes opinions of other medical and nursing experts. In its Order striking Dr. Weinstein'second affidavit docket no. More specifically, paragraphs 27 and 28 of the second affidavit, regarding policies and procedures, training and supervision, and custom and practice of CMS personnel at the jail, were not disclosed in Dr. Weinstein's original "preliminary" report, which plaintiff submitted as Exhibit 38 to her brief in response to the motion for summary judgment.

In the seminal case on the matter, Daubert v. Merrel Down Pharm. Barreto, F.

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Here, the question with respect to both sides' expert opinion evidence is one of relevance, not reliability. Specifically, both sides' experts have opined regarding "deliberate indifference. As will be noted below, whether or not a defendant acted with deliberate indifference is dependent upon their subjective state of mind. Farmer v. Brennan, U. No one, including an expert, can delve into a defendant's subjective state of mind.

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Objective facts and circumstances may provide evidence of a defendant's state of mind, but conclusory statements that a defendant acted with deliberate indifference do not assist the trier of fact. Frazier, F. Deliberate indifference "is a legal term. An expert may not opine on the question of deliberate indifference because this expresses a legal conclusion. See id. The parties' production of conflicting opinions of experts regarding whether the CMS' defendants' conduct met the standard of care or was "deliberately indifferent" does not create a triable issue on plaintiff's constitutional claims.

Accordingly, the court has disregarded those opinions of both sides' experts which express a legal conclusion that a defendant was or was not deliberately indifferent. Mutual Ins.

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Sullivan, U. Where the defendant makes a properly supported summary judgment motion in such an action, the non-moving party must demonstrate a genuine issue of material fact as to these two elements. Miller v. Calhoun County, F. The CMS defendants do not dispute that they acted under color of state law. What they do dispute is whether plaintiff can establish that Michael Woodhull was deprived of a right secured by the Constitution, namely, the Eighth Amendment.

Terrance v.

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Northville Regional Psychiatric Hosp. Gamble, U. Even though Michael Woodhull was an unconvicted detainee, the Fourteenth Amendment's Due Process Clause operates to guarantee the same Eighth Amendment protections to pretrial detainees. Miller, F.

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