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Barber v. Corizon Health

United States District Court, N.D. Alabama, Southern Division

March 30, 2018

CORIZON HEALTH, et al., Defendants.



         On June 15, 2015, Plaintiff James Edward Barber, Jr. (“Barber”), a prisoner proceeding pro se, initiated this action against Defendants Corizon Health, Dr. Hugh Hood, Cheryl Price, and Dr. Roy Roddam, [2] asserting claims under 42 U.S.C. § 1983 that they had refused to treat his medical needs and had denied him access to outdoor recreation. (Doc. 1). On October 26, 2015, counsel appeared for Barber, (docs. 12 & 14), and on November 5, 2015, Barber amended his complaint, (doc. 18). The amended complaint reframed the original § 1983 claims and added as defendants James Butler, Cedric Specks, Angela Miree, [3] and Jefferson Dunn. (Id.). Specifically, the amended complaint asserts an Eighth Amendment denial of medical care claim against Corizon, Dr. Hood, Dr. Roddam, Butler, Price, and Dunn; a conspiracy claim against Corizon, Dr. Hood, Dr. Roddam, Butler, and Price; an Eighth Amendment failure to intervene claim against Corizon, Dr. Hood, Dr. Roddam, Butler, Price, and Dunn; an Eighth Amendment conditions of confinement claim against Price, Specks, Miree, and Dunn; and a medical malpractice claim against Corizon, Roddam, Hood, and Butler. (Id.). The defendants generally fall into two groups: the defendants involved with Barber's medical care (Corizon, Dr. Roddam, Dr. Hood, and Butler - the “Corizon Defendants”) and the defendants employed by or overseeing the Alabama Department of Corrections (Price, Specks, Miree, and Dunn - the “ADOC Defendants”). Separately, the Corizon Defendants and the ADOC Defendants now move for summary judgment. (Docs. 71 & 72). The motions are fully briefed and ripe for review. (Docs. 79, 80 & 81). For the reasons stated below, each motion is GRANTED IN PART and DENIED IN PART.

         I. Standard of Review

         Under Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment is proper if the pleadings, the discovery, and disclosure materials on file, and any affidavits “show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” “Rule 56[] mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 447 U.S. 317, 322 (1986). The moving party bears the initial burden of proving the absence of a genuine issue of material fact. Id. at 323. The burden then shifts to the nonmoving party, who is required to “go beyond the pleadings” to establish there is a “genuine issue for trial.” Id. at 324. (citation and internal quotation marks omitted). A dispute about a material fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

         The Court must construe the evidence and all reasonable inferences arising from it in the light most favorable to the non-moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, (1970); see also Anderson, 477 U.S. at 255 (all justifiable inferences must be drawn in the non-moving party's favor). Any factual disputes will be resolved in Plaintiffs favor when sufficient competent evidence supports Plaintiffs version of the disputed facts. See Pace v. Capobianco, 283 F.3d 1275, 1276-78 (11th Cir. 2002) (a Court is not required to resolve disputes in the non-moving party's favor when that party's version of the events is supported by insufficient evidence). However, “mere conclusions and unsupported factual allegations are legally insufficient to defeat a summary judgment motion.” Ellis v. England, 432 F.3d 1321, 1326 (11th Cir. 2005) (per curiam) (citing Bald Mtn. Park, Ltd. v. Oliver, 836 F.2d 1560, 1563 (11th Cir. 1989)). Moreover, “[a] mere ‘scintilla' of evidence supporting the opposing party's position will not suffice; there must be enough of a showing that the jury could reasonably find for that party.” Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (citing Anderson, 477 U.S. at 252).

         IT. Summary Judgment Facts

         Barber is a death row inmate at Donaldson Correctional Facility in Bessemer, Alabama. (Doc. 72-2 at 2-3 (4:1-8, 5:22-6:6)). Barber began noticing problems with his left hip in January 2004, shortly after he became incarcerated at Donaldson. (Id. at 6 (20:7-12)). On June 22, 2004, Dr. Sylvia McQueen, then the medical director at Donaldson, diagnosed Barber with osteoarthritis[4]in his left hip. (Doc. 72-2 at 9-10 (32:8-33-6); doc. 79-1 at 8). Dr. McQueen prescribed an NSAID and a muscle relaxant. (Doc. 72-2 at 10 (33:14-23); doc. 79-1 at 8).

         From 2004 to 2008, various prison physicians continued to treat Barber's osteoarthritis with NSAIDs. (Doc. 72-2 at 11-12 (40:15-41:4)). X-rays taken during this period showed mild arthritis, but Barber testified the pain was progressively getting worse. (Doc. 72-2 at 11 (37:2-13, 38:9-39:4)). Beginning in September 2004 and continuing through February 2006, Barber complained to prison physicians that the medication was no longer working and that the pain affected his mobility and prevented him from exercising and sleeping. (Doc. 79-1 at 13-22).

         In March 2009, the narcotic Ultram was added to Barber's prescription regimen. (Doc. 79-1 at 2, 86). Despite this new medication, between 2009 and 2012, Barber continued to report increased hip pain leading to loss of mobility and inability to sleep or sit for long periods. (Id. at 9, 47-48, 51, 60, 103-04, 107, 112-14, 116-19, 122, 125). Barber also requested increases in his medication's frequency or dosage, as by his reports the medication was no longer sufficient. (Id.). Barber was given a cane in January 2011. (Id. at 126).

         In early 2013, Defendant Dr. Hugh Hood was serving as interim medical director at Donaldson. (Doc. 79-2 at 55 (213:5-14)). Dr. Hood saw Barber twice at Donaldson in early 2013. Barber's first visit with Dr. Hood occurred on January 29, 2013, after Barber reported hip and back pain. (Doc. 79-1 at 32; doc. 79-2 at 52 (204:10-13)). Dr. Hood observed Barber's osteoarthritis, noting increased pain on flexion and rotation of the hip joint and reduced pain on extension of the hip joint. (Doc. 79-1 at 32). Dr. Hood noted that the pain was “probably more related to degenerative joint disease of the left hip, ” but suspected Barber might also be suffering from a herniated disc. (Id.; doc. 79-2 at 54 (209:20-210:15). To differentiate the source of Barber's pain, Dr. Hood prescribed a tapered steroid regimen, which would potentially rule out the herniated disc. (Doc. 79-2 at 54 (210:6-211:3). Dr. Hood also prescribed Norco, a narcotic, at 5/325 twice per day for thirty days. (Doc. 79-1 at 27; doc. 79-2 at 58 (225:1-226:5).

         Dr. Hood saw Barber approximately two weeks later for a follow-up visit. (Doc. 79-1 at 31). Barber reported no improvement from the steroid regimen, and Dr. Hood's notes reflect that Barber's “[s]igns and symptoms worsen with internal and external rotation of the left hip.” (Doc. 79-1 at 31; doc. 79-2 at 61 (240:4-10)). Dr. Hood testified his notes reflect that Barber's hip was getting worse. (Doc. 79-2 at 61 (240:21-25)). Dr. Hood switched Barber from Norco to the essentially identical narcotic Lortab at the same 5/325 dosage, but increased the frequency to three times per day for thirty days. (Doc. 79-1 at 31; doc. 79-2 at 58 (226:24-227:13) & 61 (238:23-239:17)).

         In May 2013, Defendant Dr. Roy Roddam was hired by Corizon on a part-time basis to see inmates at the prison. (Doc. 72-6 at 4 (11:10-12:14)). Dr. Hood was Dr. Roddam's medical supervisor. (Id. at 4-5 (12:23-24)). Dr. Roddam saw Barber on July 30, 2013, noting his pain was thought to be caused by osteoarthritis (which had been confirmed by X-rays). (Doc. 79-1 at 31; doc. 72- 6 at 13 (45:16-23)). Barber saw Dr. Roddam again on October 8, 2013, reporting pain in his left hip at a consistent severity of 6 out of 10. (Doc. 79-1 at 30). Barber's hip flexion was 20 degrees with 0 degrees of abduction, contrasted with a normal hip's 150 degrees of flexion and 45-50 degrees of abduction. (Doc. 79-1 at 30; Doc. 72-6 at 15 (54:17-55:3); doc. 72-8 at 6 (19:16-20:11)).

         Because Barber's subjective reports of pain were inconsistent with the x-rays showing mild or minimal osteoarthritis, Dr. Roddam ordered another X-ray. (Doc. 79-1 at 30; doc. 72-6 at 15 (54:6-16, 56:13-17)). Dr. Roddam also planned to have Barber undergo an orthopedic consultation with Dr. Thomas Powell to determine why Barber's subjective complaints were more severe than the minimal condition indicated by the objective evidence. (Doc. 79-1 at 30; doc. 72-6 at 15-16 (56:10-20)). Pursuant to Corizon policy, on October 8, 2013, Dr. Roddam submitted a request to Dr. Hood requesting a consultation with Dr. Powell.[5] (Doc. 79-5 at 2-3; doc. 79-6 at 2). Dr. Hood denied that request on November 8, 2013. (Doc. 79-6 at 3). Although Dr. Hood was required by Corizon policy to document the reason for the denial, he did not do so; instead, Dr. Hood directed Dr. Roddam to “[m]anage on site.” (Doc. 79-5 at 2-3; doc. 79-6 at 3).

         Barber saw Dr. Roddam again on November 26, 2013, stating his pain had worsened progressively over the past six years. (Doc. 79-1 at 29). Between visits, Barber had undergone another X-ray showing modest osteoarthritis with spurring. (Id. at 29, 64). Dr. Roddam tested Barber's hip and found flexion to 40 degrees, causing significant pain, and painful internal and external rotation. (Id. at 29; doc. 72-6 at 16 (58:1-8)). Dr. Roddam again noted Barber's subjective reports were “out of proportion” to the X-ray findings and again indicated he planned to seek an orthopedic consultation with Dr. Powell. (Doc. 79-1 at 29; doc. 72-6 at 16 (60:9-16) & 17 (61:7-18)). The same day, Dr. Roddam submitted a second request for an orthopedic consultation to Dr. Hood, which Dr. Hood approved. (Doc. 79-6 at 4; doc. 72-6 at 36 (140:21-24)).

         On January 23, 2014, Barber saw Dr. Powell at Brookwood Medical Center in Birmingham Alabama. (Doc. 79-7 at 3-4). Dr. Powell's progress notes from the visit state:

Mr. Barber presents complaining of left hip pain. He is Death Row inmate from Donaldson who complains of left hip pain that point where he has difficulty moving, bending, walking etc. He is here for further evaluation and treatment. He denies any specific injury to his left hip.
His left hip has about 100° of flexion but only 4/5 strength. He has about 15° of external rotation, but no internal rotation and abduction is limited to maybe 15° with pain. Neurologically appears intact and there is no palpable tenderness.

(Doc. 79-7 at 3). Dr. Powell testified that 4/5 strength was near normal, but that the ranges of motion were less than normal-fifty degrees fewer in flexion, thirty-five to forty degrees fewer in internal rotation, forty-five to fifty degrees fewer in external rotation, and thirty to forty-five degrees fewer in abduction. (Doc. 72-8 at 6 (19:3-20:11)). X-rays taken at the visit showed “end-stage arthritis of the left hip without evidence of fracture, ” which Dr. Powell testified was indicated by “bone spurs, joint space loss, irregularity of the femoral head.” (Id. at 7 (23:6-9); doc. 79-7 at 3). As treatment for Barber's hip pain, Dr. Powell stated: “Today, we discussed [Barber's] options and I think it would be reasonable to at least try an intra-articular steroid injection, and he agrees. Otherwise, or if he fails that, the only treatment option would be total hip replacement.” (Doc. 79-7 at 3). Dr. Roddam testified the X-rays taken at Dr. Powell's office supported the pain Barber had complained of, as they “showed a degree of osteoarthritis that was different than the X-ray film that had been taken at Donaldson, ” and that the reading of the X-rays resolved his confusion. (Doc. 72-6 at 24 (89:6-20) & 37-38 (144:25-145:16)). Dr. Roddam agreed with Dr. Powell's assessment of Barber's options. (Id. at 37 (144:16-20)).

         Barber agreed to try the steroid injection. (Doc. 72-2 at 19 (69:1-12)). Dr. Hood verbally approved the procedure, and another doctor at Brookwood Medical Center administered the injection the same day. (Id. (69:11-12, 72:6-15); doc. 79-6 at 6; doc. 79-7 at 2). However, the injection was unsuccessful; Barber received only negligible relief from the steroids. (Doc. 72-2 at 20 (73:1-2); doc. 72-6 at 18 (65:19-66:2) & 20 (73:12-19)).

         Dr. Powell submitted a provider consultation report to Dr. Hood the day of Barber's visit. (Doc. 79-6 at 5). In it, Dr. Powell noted the X-ray revealed “endstage OA L hip” and stated as his diagnosis and prescription suggestions: “OA L hip. Try intraarticular steroid injx. If fails - Total hip the only option.” (Id.). Dr. Hood testified he understood Dr. Powell's diagnosis to mean that Barber's osteoarthritis was advanced (and not mild or moderate) and his conclusion to mean that no intervention beyond total hip replacement would be successful. (Doc. 79-2 at 68 (267:14-268:9)). After reviewing the report, Dr. Hood circled “no further action” and commented only “noted.” (Doc. 79-6 at 5). He testified he did so because he “didn't feel like a total hip replacement was medically necessary at this point, ” but that it would be “when his physical impairment, that is, his ambulation was such that he would no longer be able to access healthcare without assistance. When the - when pain relief was not adequate with reasonable pain medications that impaired his ability to walk and get to the - to the healthcare unit or around the - the prison, for requirements, that would be a consideration, or if he had a job in the prison where it was impairing his ability to perform his work, that would be an indication.” (Doc. 79-2 at 68-69 (268:22-269:8)). Prior to Dr. Roddam's arrival at Donaldson, Dr. Hood had had conversations with two officers regarding Barber's ambulation, (id. at 48-50 (188:9-195:6)), but could not recall having any other conversations about Barber's ambulation or whether he had complaints of pain, including whether his pain or ambulation had gotten worse. (Id. at 69 (269:9-270:8)). Dr. Hood also testified use of a cane and/or a wheelchair would constitute “assistance.” (Id.).

         Reporting pain, Barber saw Dr. Roddam again on January 28, 2014. (Doc. 79-1 at 76). Dr. Roddam noted the pain continued despite the steroid injection and “[Dr. Powell's] thinking is [Barber] has end stage OA & total hip arthroplasty is next option.” (Id.). As his treatment plan, Dr. Roddam wrote: “Consult filled out. Whether approved is another issue since [Barber] is on death row.” (Id.). Dr. Roddam submitted a consultation request to Dr. Hood on the same day, requesting a total hip arthroplasty and noting in his objective findings that there had been a “failed injection.”[6] (Doc. 79-6 at 7). On February 2, 2014, Dr. Hood requested Dr. Roddam “please provide the disability associated with the affected hip joint and conservative measures which have failed.” (Id. at 8). Dr. Roddam directed Dr. Hood to “See note by Dr. Powell” and re-requested the hip replacement. (Id.; doc. 79-2 at 277:4-22)). On February 27, 2014, Dr. Hood denied the request and offered an alternative treatment plan: “Manage on site.” (Doc. 79-6 at 9). Dr. Hood had no independent recollection of the reason for this direction, although he testified it implied Barber did not have a disability preventing him from ambulating or accessing the healthcare unit without distress; in any event, he did not indicate this in the denial. (Doc. 79-2 at 71 (278:21-280:14)). Dr. Hood could not recall contacting Dr. Roddam about Barber's ambulation and did not contact Dr. Roddam about Barber's level of pain or treatment. (Id.). Dr. Roddam understood Dr. Hood's direction to mean that Barber would not get a hip replacement, and that the condition should be managed in other ways (e.g., pain management). (Doc. 72-6 at 41 (158:24-159:21)).

         Following the denial of the request, Barber continued to complain of “unbearable” pain, stating it interfered with his sleep and ability to move. (Doc. 72-2 at 20 (74:23-75:5); doc. 79-1 at 38-46). In July 2014, Barber twisted his right leg when he caught it in a crack in the prison's concrete floor. (Doc. 72-2 at 20 (75:20-76:6)). Barber saw Dr. Roddam on July 29, 2014, reporting pain in his right knee and left hip. (Doc. 79-1 at 75). Dr. Roddam again noted the steroid injection had been ineffective and that Dr. Powell had “suggested THR [total hip replacement] as only other option, ” but that the procedure had been previously denied. (Id.). Dr. Roddam's plan notes “UM [utilization management] for hip arthroplasty previously not approved.” (Id.).

         Barber had a follow-up visit on September 16, 2014, but saw Dr. Hood rather than Dr. Roddam. (Doc. 72-2 at 21 (77:18-78:19; doc. 79-1 at 74). Dr. Hood's notes indicate that he and Barber discussed the possibility of hip replacement; Barber testified Dr. Hood told him “we don't do surgery for mild arthritis” and stated Barber's X-rays supported mild arthritis, but Barber insisted Dr. Powell had recommended him for surgery. (Doc. 79-1 at 74; doc. 72-2 at 21 (79:5-11). Dr. Hood's notes indicate hip replacement was not medically necessary at that point “considering [Barber's] required level of activity.” (Doc. 79-1 at 74). Instead, Dr. Hood's treatment plan was to “continue pain mgmt for knee & hip. Wheelchair & cane. F/u pain med renewal.” (Doc. 79-1 at 74; doc. 79-2 at 64 (251:19-252:15)).

         Dr. Hood testified he believed the degree of pain Barber reported seemed to be unsupported by medical findings and suspected Barber had not been taking his narcotic medication appropriately; therefore, he had the department of corrections perform a drug test on Barber and the inmates on either side of him. (Doc. 79-2 at 4-6 (11:21-13:16, 19:21-20:7)). The inmates in adjoining cells tested positive for opiates, despite not having prescriptions for narcotic medications. (Doc. 79-1 at 74; doc. 79-2 at 4 (21-24), 6 (19:21-20:7)). As a result, Dr. Hood discontinued Barber's Norco. (Doc. 72-2 at 21 (79:3-80:12); doc. 79-1 at 74). Dr. Hood could not recall whether the test on Barber had come back at the time he made his decision to discontinue the narcotic, but testified he was sure he would have indicated in the report had he known of the results. (Doc. 79-2 at 65 (254:2-255:9)). Barber ultimately tested negative for opiates two weeks after his medication was discontinued, but Dr. Hood testified he did not know how long it would have taken for the medication to be eliminated from Barber's system. (Doc. 79-1 at 37; doc. 79-2 at 65 (255:22-256:6)). Barber testified he was compliant in taking medications, including narcotics, as prescribed. (Doc. 72-2 at 22 (83:15-84:1) & 38 (150:16-151:1)). In any event, Dr. Hood did not want to restart narcotics after the negative test, “as there is no indication for them.” (Doc. 79-1 at 37).

         In lieu of narcotics, Barber received NSAIDs for approximately one year. (Doc. 79-1 at 66-67). During this time period, Barber complained repeatedly that his medication was inadequate and that his hip pain was preventing him from walking, sleeping well, and using the bathroom. (See doc. 79-1 at 34, 38, 79-82).

         On October 14, 2014, Barber saw Defendant James Dennis Butler, a certified registered nurse practitioner (“CRNP”)[7] at Donaldson, on a complaint of hip pain. (Doc. 79-1 at 73). Barber told Butler he did not believe Dr. Hood understood the severity of his hip problem at the time Dr. Hood denied the hip replacement. (Id.). Butler reviewed Dr. Hood's note discontinuing Barber's narcotic pain medication and increased Barber's Naprosyn prescription. (Id.; doc. 72-7 at 30-31 (116:17-118:8)). Butler testified he would have been unable to prescribe narcotics, even had he felt them to be appropriate. (Doc. 72-7 at 119:22-120:5)). In a progress note on the same date, Butler noted Barber had stated he “did not want his wheelchair any more and left it in the hallway.” (Doc. 79-1 at 73). Butler then observed Barber walking with a limp and using his cane, but talking with others and not struggling to keep up. (Id.). Butler testified he had made this note “because of what it said about [Barber's] complaint of pain” earlier that day; Butler was “flabbergasted” that Barber had abandoned his wheelchair and did not seem to be in pain as he was walking. (Doc. 72-7 at 37 (142:12-144:1)).

         Barber saw Dr. Roddam on December 23, 2014, complaining of “real bad” hip pain. (Doc. 79-1 at 72). Dr. Roddam's notes state “Dr. Powell noted end stage OA & recommended THR. UM refused.” (Id.). Dr. Roddam prescribed ibuprofen and Tylenol. (Id.).

         Barber next saw Dr. Roddam on February 10, 2015. (Doc. 79-1 at 71). Dr. Roddam noted X-rays had showed only modest osteoarthritis, and that it was “difficult to reconcile [Barber's] degree of pain & his X-ray findings in hip.” (Id.). The notes also reflect Dr. Roddam planned to speak with Dr. Hood the next day regarding the reasons for the denial of the hip replacement. (Id.). Dr. Roddam also wrote “Do not fill out UM” (i.e., the utilization management for the hip replacement), indicating he saw no reason to fill out another consultation request form without discussing the previous denial with Dr. Hood. (Id.; doc. 72-6 at 23-24 (88:14-89:5)). Dr. Roddam discussed the procedure with Dr. Hood at a provider meeting the next day. (Doc. 72-6 at 23 (86:12-87:1)). During that conversation, Dr. Hood stated the UM was not indicated; Dr. Roddam noted this in an addendum to his progress note. (Doc. 72-6 at 24 (90:19-91:3); doc. 79-1 at 71). Dr. Roddam recalled from the conversation that the UM was disapproved because Barber could have treatments other than arthroplasty: specifically, medical therapy in the form of drugs for Barber's pain. (Doc. 72-6 at 24 (91:8-20)). Dr. Roddam also testified Dr. Hood stated to him the UM would not be approved because Barber had limited amounts of activity; he did not have a job, play basketball, or “traverse the prison.” (Id. at 24-25 (91:23-95:15)).

         Barber saw Dr. Roddam again on August 4, 2015, complaining that he could not use his hip any longer and that his medication did not work. (Doc. 79-1 at 70). Dr. Roddam's notes state “prior hip film shows mild OJD.” (Id.). Dr. Roddam restarted Barber on narcotics and ordered another X-ray. (Id.). This X-ray was taken by MobilexUSA at Donaldson on August 5, 2015. (Doc. 72-6 at 41 (159:25-160:5)). According to the radiologist, the X-ray showed arthritis in Barber's left hip and a possible femoral fracture; the radiologist described the changes in the hip as “minimally worse” since the October 20, 2013 X-ray and indicated an orthopedic consultation would be required. (Id. (160:8-16); doc. 79-1 at 69). Dr. Roddam noted his intention to confirm whether a fracture was present through an MRI or CT scan and, if it was, order another consultation with Dr. Powell; additionally, Dr. Roddam planned to have Dr. Powell review the film. (Doc. 79-1 at 69).

         The same day, Tomeka Sellers, a medical scheduler at Donaldson, emailed Kathy Green, Dr. Powell's assistant, requesting Dr. Powell review Barber's recent X-ray. (Doc. 72-8 at 18). Green replied: “Dr. Powell suggests that he get an intraarticular steroid injection. This will have to be done in radiology at Brookwood. He will probably eventually need a total hip replacement but certainly don't want to have to do that until much later on.” (Id. at 19). On August 6, 2015, Sellers responded, inquiring if Dr. Powell agreed with the MobilexUSA radiologist that the subcapital femoral neck was fractured. (Id.). Green responded: “Dr. Powell said that he has pretty significant arthritis and doesn't think the fracture is significant enough to do anything for at this point. He suggests keeping him nonweightbearing for 2-3 weeks, then re-x-ray and send us the films.” (Id.).

         Dr. Roddam ordered a CT scan, which was taken on August 20, 2015. (Doc. 72-6 at 38-39 (148:11-149:1)); doc. 72-8 at 26). The CT scan did not show a fracture but did show severe degenerative osteoarthritis of the left hip with complete loss of the superior lateral joint space and large subchondral cystlike change. Large marginal osteophytes are present. There is a small hip effusion.” (Doc. 72-8 at 26). The impression of the physician who read ...

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