United States District Court, E.D. Virginia, Alexandria Division
JAMES O. BAXTER, II, Plaintiff,
UNITED STATES OF AMERICA, Defendant.
C. Cacheris UNITED STATES DISTRICT COURT JUDGE
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.
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.
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.
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.
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.
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
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.
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.
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.
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#
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.
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 ...