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Baxter v. United States

United States District Court, E.D. Virginia, Alexandria Division

April 27, 2017

JAMES O. BAXTER, II, Plaintiff,



         This matter is before the Court on Defendant United States of America's Motion for Partial Summary Judgment [Dkt. 82]. Defendant seeks summary judgment on Plaintiff James O. Baxter, II's medical malpractice claim insofar as it alleges Defendant's failure to diagnose and treat Plaintiff's Peyronie's Disease exacerbated Plaintiff's condition and resulted in permanent damage to Plaintiff's genitalia. Defendant also moves for summary judgment on Plaintiff's claims for intentional and negligent infliction of emotional distress. Also before the Court is Plaintiff's Motion in Limine [Dkt. 88], which seeks a ruling as to whether the United States may withhold any sum to be paid to Plaintiff in connection with this case and apply it to Plaintiff's outstanding restitution debt. For the reasons that follow, the Court will grant Defendant's Motion for Summary Judgment and deny Plaintiff's Motion in Limine without prejudice.

         I. Background

         The following facts are drawn largely from Defendant's listed Undisputed Material Facts (“UMF”). See Mem. in Supp. of Mot. for Partial Summ. J. [Dkt. 83] at 2-8. Plaintiff does not specifically contest or attempt to rebut any of the following.

         On June 5, 2006, the United States District Court for the District of Columbia sentenced Plaintiff to 120 months of incarceration. UMF ¶ 1. Plaintiff served his prison term at the Federal Correctional Institution at Petersburg (FCI Petersburg) from August of 2006 to November of 2014. Id.

         Beginning in late 2009, Plaintiff began to experience the symptoms of Peyronie's Disease, a medical condition that results from a buildup of inflammatory plaque in the penis. Id. ¶¶ 2, 7. The disorder causes a painful curvature of the penis, sometimes resulting in sexual dysfunction. Id. ¶ 2.

         Peyronie's Disease progresses in two stages: the “active” phase and the “stable” phase. Id. ¶ 3. The active phase lasts 12 to 24 months, during which plaque forms in the penis, resulting in penile pain and increasing curvature. Id. During the stable phase, penile pain subsides and the curvature stabilizes. Id.

         Treatment for Peyronie's Disease depends on the phase of the condition. During the active phase, treatment is generally limited to over-the-counter antioxidants such as fish oil and Vitamin E meant to reduce the size of the penile plaque deposits. Id. ¶ 4(a). Recent medical research has cast doubt on the efficacy of this method, and the American Urological Association has, as of 2015, ceased recommending antioxidants for the treatment of Peyronie's Disease. Id. Beyond this, men suffering from Peyronie's Disease may take over-the-counter painkillers such as ibuprofen during the active phase to reduce their discomfort. Id.

         During the stable phase, Peyronie's Disease may be treated through more invasive means - surgery or injections that can reduce the curvature of the penis. Id. ¶ 4(b). Generally, these treatments are reserved for severe cases. Id. One such treatment, approved by the FDA in December of 2013, involves injecting collagenase directly into penile plaques. Id. This treatment, however, has been found on average to produce limited improvement in penile curvature, and is approved only for use on patients suffering severe erectile curvature exceeding thirty degrees. Id.

         Between December of 2009 and July of 2011, Plaintiff made numerous complaints regarding his penile pain to BOP medical staff. Id. ¶ 7. Defendant disputes that these complaints were such that BOP medical staff had notice of Plaintiff's condition. Id. ¶ 7 n.1. Defendant acknowledges, however, that there exists a material dispute of fact on this point that must be resolved in Plaintiff's favor for purposes of the present Motion. Id.

         Plaintiff's own research led him to believe that he suffered from Peyronie's Disease in March of 2010. Id. ¶ 7. At some point after he became symptomatic, Plaintiff briefly took fish oil of his own accord, but experienced no improvement in his condition. See id. ¶ 7(b); Df. Exh. C [Dkt. 83-1] at ECF# 30. Beginning in July of 2011, Plaintiff began to take Vitamin E, but his condition only worsened. See UMF ¶ 7(b) n.3; Df. Exh. D [Dkt. 83-1] at ECF# 46.

         Despite Plaintiff's complaints, Plaintiff was not permitted to see an urologist until September 15, 2011 - nearly two years after the onset of his symptoms. See UMF ¶ 9. The urologist, Dr. Harry Bigley, confirmed that Plaintiff suffered from Peyronie's Disease and recommended that Plaintiff continue to take Vitamin E. Id. Dr. Bigley also noted the presence of blood in Plaintiff's urine - apparently unrelated to Peyronie's Disease - and suggested that Plaintiff schedule a follow up visit for the following month. See Df. Exh. E [Dkt. 83-1] at ECF# 55.

         Plaintiff, however, was not able to schedule such a visit. Dr. Bigley's contract to provide medical services at FCI Petersburg terminated soon after Plaintiff's initial appointment. See Df. Exh. R [Dkt. 83-1] at ECF# 94. As a result, Plaintiff was not able to schedule another appointment with an urologist until April 18, 2012, when Plaintiff visited the newly contracted urologist Dr. Duck. See Df. Exh. F [Dkt. 83-1] at ECF# 57. Dr. Duck found that Plaintiff suffered from “mild Peyronie's Disease with minimal plaque on left lateral aspect of penis, ” and recommended that Plaintiff continue to take over-the-counter antioxidants. Id.

         Plaintiff continued to see Dr. Duck throughout the following two years. See UMF ¶ 10. In addition to antioxidants, Dr. Duck would eventually make two additional recommendations. First, Dr. Duck ordered a CT scan of Plaintiff's penis “because [Plaintiff] wanted a documentation of the degree of Peyronies [sic] plaque that he has in his penis.” Df. Exh. I [Dkt. 83-1] at ECF# 64. The CT scan was apparently bungled, and Dr. Duck recommended an ultrasound of Plaintiff's penis be taken because Plaintiff remained “quite adamant . . . that he want[ed] some documentation” regarding the progress of his condition. Id. Plaintiff's medical expert Dr. Victor Herry ...

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