to the Plaintiffs, as that claim has been asserted against Defendants, Plantier, Dr. Reddy, Dr. Cardinale, and Nurse Allen. Summary judgment as to those Defendants is therefore inappropriate. Summary judgment as to Defendant, Fauver, is, however, appropriate.
b) Medical Care
On Plaintiffs' claims with respect to the medical care that they received at ADTC, Defendants argue that the care received by Plaintiffs was not constitutionally inadequate. Noting correctly that "a plaintiff's disagreement with a doctor's professional judgment does not state a violation of the Eighth Amendment," see Napoleon, 897 F.2d at 110; Defendants' Brief at 24, Defendants contended vigorously at oral argument that expert witnesses do not establish the constitutionally minimal standard of medical care to which prison inmates are entitled. Armed with this proposition, Defendants assert with passionate intensity that the undisputed evidence of what level of medical care the Plaintiffs did receive demonstrates that summary judgment is appropriate. This argument presumes too much and makes one logical leap too many.
At the outset it should be said that the role of expert testimony in proving a violation of the Eighth Amendment is somewhat more limited than normal. This is because an Eighth Amendment violation is to be measured with respect to "contemporary standards of decency," Rhodes v. Chapman, 452 U.S. 337, 349 n. 13, 69 L. Ed. 2d 59, 101 S. Ct. 2392 (1981) (citing Gregg v. Georgia, 428 U.S. 153, 173, 49 L. Ed. 2d 859, 96 S. Ct. 2909 (1976)), not with respect to what a particular expert deems necessary. Expert witnesses, who are not generally relied upon to define or conclusively establish the meaning of distinctly legal concepts, see, e.g., Woods v. Lecureux, 110 F.3d 1215, 1219-21 (6th Cir. 1997), simply cannot by themselves "establish the constitutional minima." Rhodes, 452 U.S. at 349 n.13; see also id. at 351 (court's inquiry as to whether prison conditions violate Eighth Amendment "springs from constitutional requirements") (citation omitted and emphasis added); Young v. Quinlan, 960 F.2d 351, 359 (3d Cir. 1992) ("great weight [must be placed] on the public attitude towards a given sanction, rather than on expert opinions"); Tillery v. Owens, 907 F.2d 418, 426 (3d Cir. 1990).
Nonetheless, expert testimony may be helpful in understanding the prevailing norms against which conditions in a particular prison are to be evaluated. See, e.g., Rhodes, 452 U.S. at 364 n.12 (Brennan, J. concurring). This is particularly true where the issue is the adequacy of medical care, as opposed to issues more closely linked to prison security. The decisions by prison officials with respect to medical care are entitled to less deference than decisions related to prison security. See Whitley v. Albers, 475 U.S. 312, 320-22, 89 L. Ed. 2d 251, 106 S. Ct. 1078 (1986) (noting deference extended to decisions regarding prison security measures, as compared to those involving medical care); Rhodes, 452 U.S. at 349 n.14 ("prison's internal security is peculiarly a matter normally left to the discretion of prison administrators"); Sample v. Diecks, 885 F.2d 1099, 1109 (3d Cir. 1989) ("less deference [to decisions of prison officials], and hence a more lenient state-of-mind requirement from a prisoner-plaintiff's point of view, is required with respect to the provision of medical care to inmates"); Langley v. Coughlin, 715 F. Supp. 522, 543 (S.D.N.Y. 1989). Thus, expert testimony is very likely to be helpful to a court in deciding whether, the level of care provided was adequate as a matter of medical science, and ultimately, whether the care provided meets the standard of constitutional adequacy. See, e.g., Johnson v. Philadelphia, 1996 U.S. Dist. LEXIS 18340, 1996 WL 735256, *3 (E.D. Pa. Dec. 6, 1996); see also Tillery, 907 F.2d at 426 (holding that, although court's inquiry is based on evolving societal standards, inquiry must be exacting and made in light of objective factors).
With this in mind, it cannot be said as a matter of law that the level of care provided to the Plaintiffs was constitutionally adequate. First, with respect to blood testing ("accuchecks"), Plaintiffs had accuchecks on as many as twenty-five or twenty-seven days during the year, for example, Rouse in 1993 or Brooks in 1993, see Defendants' Exh. B3, D3. However, the same Plaintiffs also had accuchecks on as few as three or five days during a year, for example, Rouse in 1994 or Brooks in 1994. See Defendants' Exh. B3, D3.
Also, in a little more than six years of incarceration at ADTC, Kammerer had opportunities to have his blood checked on about seven days per year. See Plaintiffs' Exh. E3. Similarly, Jankowski's blood, it appears, was tested on average about 9.5 times per year during his seven years of incarceration. See Defendants' Exh. G3-G4. See also Defendants' Brief at 6-7, 11-12, 16, 18, 25; Plaintiffs' Exh. 23A-E; Defendants' Exh. B3, D3, E3, F3, G4. Given the standard of care which Plaintiffs' experts have articulated and supported with reference to medical literature, see, e.g., Plaintiffs' Exh. 1-3, 5; Plaintiffs' Exh. 14 at 40-42, it cannot be said, as a matter of law that there was no serious deprivation of medical care, Farmer, 511 U.S. at 834.
Indeed, while Defendants' expert, Dr. Ryan, concluded that "in general . . . the glucose monitoring and subsequent care [at ADTC] was [sic] entirely appropriate," and backhandedly criticized Plaintiffs' expert, Dr. Michael D. Cohen, for setting a frequency for glucose monitoring which Dr. Ryan deemed too high, Plaintiffs' Exh. 4 at 6-7, not even Dr. Ryan specifically opined that the frequency of monitoring provided for the Plaintiffs was adequate as a matter of current medical practice. See, e.g., Defendants' Exh. O at 61; Plaintiffs' Exh. 4. Furthermore, even if Dr. Ryan's report shows that the frequency of "accuchecks" was sufficient to constitute a constitutionally acceptable level of medical care for Plaintiffs, the reports of Dr. Cohen and a second Plaintiffs' expert, Dr. Matthew J. Miller, constitute much more than a "scintilla" of evidence on this question. See, e.g., Plaintiffs' Exh. 1 at 4 ("the current standard of care for diabetes requires frequent blood sugar monitoring, at least three to four times per day"), Exh 2 at 2 ("at the very least, all insulin-requiring diabetics should monitor their blood glucose levels on a daily basis. The opportunity to measure blood glucose at least [three] times daily is a reasonable standard to which we should aspire."); see also id. at 3 (noting disagreement between Dr. Miller and Dr. Cohen regarding frequency of glucose monitoring). Quite clearly, substantial questions of fact remain regarding what frequency of glucose monitoring for these Plaintiffs would be adequate as a matter of medical science, and ultimately, as a matter constitutional law.
On all of the other axes by which a reasonable course of treatment would be measured, the reports of Dr. Cohen and Dr. Miller, combined with the report of Dr. Vincent N. Jarvis, who examined Rouse and evaluated his course of treatment, see Plaintiffs' Exh. 3, show the existence of substantial questions of fact on at least the following issues: 1) the adequacy of care of Rouse and Brooks' feet, compare Plaintiffs' Exh. 1 at 13-14 with Plaintiffs' Exh. 4 at 11; 2) the adequacy of eye care provided, particularly, whether any preventive care is provided, see, e.g., Plaintiffs' Exh. 1 at 12; 3) the adequacy of measures to prevent other relatively common diabetes-specific complications, such as kidney damage, nerve damage, or blood vessel damage, see, e.g., id. at 14-16; 4) the existence of and need for diabetic education, compare, e.g., id. at 8 with Defendants' Brief at 28-29 (citing, inter alia, deposition testimony indicating patient knowledge of diabetic condition).
In short, although Plaintiffs may have had, in general, some access to medical care and the fact that they may not have sustained permanent damage to specific bodily functions or systems as a result of the conditions at ADTC, perhaps the linchpins of Defendants' argument, see, e.g., Defendants' Brief at 5, 11, 13, 26, 27, given the record of treatment, it does not follow that the Defendants are entitled to judgment as a matter of law on the question of whether the medical care provided the Plaintiffs is constitutionally adequate.
Similarly, on the question of whether Defendants have shown that no factual question exists as to whether Defendants were deliberately indifferent to Plaintiffs' medical needs, Defendants' cursory argument, see Defendants' Brief at 30, fails. A review of the materials submitted by the Plaintiffs shows that Plaintiffs could very easily show, and a jury could reasonably conclude, that the risks of inadequate treatment were obvious to a reasonably well-trained doctor, nurse, or prison official, see, e.g., Plaintiffs' Exh. 5-7, and that Dr. Reddy, Dr. Cardinale, a diabetic himself, see Plaintiffs' Exh. 14 at 60, Nurse Allen, and Plantier were subjectively aware of the risks of inadequate treatment, but did not respond reasonably. See, e.g., Plaintiffs' Exh. 14 at 35-37, 40-42, 59-60; Exh. 15 at passim ; Exh. 16 at 19-21, 31, 33; Exh. 17 at passim ; Exh. 18 at 29-33; see generally Farmer, 511 U.S. at 842-45 & n.8; Leavy, 117 F.3d at 748.
However, Plaintiffs have not adequately responded to Defendants' contention that there is no evidence of Defendant, Fauver's deliberate indifference. See Defendants' Brief at 29; Celotex, 477 U.S. at 323-26. Their argument regarding the service of interrogatories is addressed above. See III.A.l.a, supra. For these reasons, Defendants' motion for summary judgment as to liability on Plaintiffs' claim of a violation of their Eighth Amendment rights will be denied as against Defendants, Plantier, Dr. Cardinale, Dr. Reddy, and Nurse Allen, and granted as to Defendant, Fauver.
2. Qualified Immunity
Defendants have also argued that they are entitled to qualified immunity because they acted in an objectively reasonable manner in providing medical care to the insulin-dependent diabetics at ADTC. See Defendants' Brief at 31; Defendants' Reply Brief at 14-15.
Generally, government officials are entitled to a qualified immunity when, in performing discretionary functions, their actions could reasonably have been thought consistent with the rights they are alleged to have violated. See Anderson v. Creighton, 483 U.S. 635, 638, 97 L. Ed. 2d 523, 107 S. Ct. 3034 (1987). "Whether an official protected by qualified immunity may be held personally liable for an allegedly unlawful official action generally turns on the 'objective legal reasonableness' of the action . . . assessed in light of the legal rules that were 'clearly established' at the time [the action] was taken." Id. at 639 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 819, 73 L. Ed. 2d 396, 102 S. Ct. 2727); see also Grant v. City of Pittsburgh, 98 F.3d 116, 122, 125 (3d Cir. 1996) (holding that "in evaluating a defense of qualified immunity, an inquiry into the defendant's state of mind is proper where such state of mind is an essential element of the underlying civil rights claim"); Brown v. Grabowski, 922 F.2d 1097, 1111 (3d Cir. 1990), cert. denied, 501 U.S. 1218, 115 L. Ed. 2d 997, 111 S. Ct. 2827 (1991) (noting that Anderson requires a court to analyze specific official actions of individual claiming qualified immunity).
In this case, Defendants have not argued that Plaintiffs' rights to adequate medical care were not "clearly established" within the meaning of Harlow, as restated in Anderson. See 483 U.S. at 639-640 ("contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right"); Giuffre v. Bissell, 31 F.3d 1241, 1255 (3d Cir. 1994) ("threshold determination is whether the constitutional rights asserted by the plaintiff were clearly established"). Indeed, in light of Estelle and under the circumstances of this case, such an argument could not succeed.
Rather, Defendants have stated, without very much support at all, that they "acted in an objectively reasonable manner in providing for the conditions of plaintiffs' confinement." Defendants' Brief at 31. That is, Defendants claim, a reasonable person in the position of the Defendants could not have known that his or her conduct would violate Plaintiffs' rights to adequate medical care of their diabetes.
Although most defenses of qualified immunity stand or fall on whether the right allegedly violated was "clearly established," it is quite clear that even where the right is clearly established, the defense is still available. In Harlow, the Supreme Court held that:
on summary judgment, the judge appropriately may determine, not only the currently applicable law, but whether that law was clearly established at the time an action occurred. If the law at that time was not clearly established, an official could not reasonably be expected to anticipate subsequent legal developments, nor could he fairly be said to know that the law forbade conduct not previously identified as unlawful. . . . If the law was clearly established, the immunity defense ordinarily should fail, since a reasonably competent public official should know the law governing his conduct. Nevertheless, if the official pleading the defense claims extraordinary circumstances and can prove that he neither knew nor should have known of the relevant legal standard, the defense should be sustained.