IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE ... 6th... · the declaration of Mumia Abu-Jamal. The Court also permitted the defendants to supplement the record with medical

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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE

DISTRICT OF PENNSYLANIA

MUMIA ABU-JAMAL Plaintiff, v. JOHN KERESTES, et al.

Defendants.

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Case No. 15-Cv-00967 (RDM)(KM)

Judge Robert D. Mariani

Magistrate Judge Karoline

Mehalchick

ELECTRONICALLY FILED

MEMORANDUM OF LAW IN SUPPORT OF MOTION TO STRIKE DECLARATIONS OF JAY COWAN, M.D.,

STEVEN SCHLEICHER, M.D.

I. Statement of Facts

The amended complaint alleges, inter alia, that the defendants are being

deliberately indifferent to Mr. Abu-Jamal’s medical needs by refusing to cure his

chronic hepatitis C via denying him access to the latest anti-viral medications. A

hearing on this motion was held in December 2015. On May 26, 20156, this Court

granted plaintiff’s motion to supplement the record with recent medical records and

the declaration of Mumia Abu-Jamal. The Court also permitted the defendants to

supplement the record with medical records attached to their moving papers. (Doc.

125).

Case 3:15-cv-00967-RDM Document 142 Filed 06/08/16 Page 1 of 6

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The May 26, 2016 Order also stated that the Court expected to receive by 1:00

PM on June 6, 2016 1) additional medical records post-dating the December 2015

hearing, 2) updates, if any, on the DOC’s hepatitis C policy and documents relevant to

any policy and 3 “any other documents that bear on the current state of Plaintiff’s

health and treatment.”. (Doc. 125)

On June 6, 2016, the DOC defendants filed additional medical records and

updates on the DOC hepatitis C policy. In addition, they filed declarations from Jay

Cowan, M.D. (Doc. 134), Steven Schleicher, M.D. (Doc. 135) and John Steinhardt

(Doc. 134). The declarations of Drs. Schleicher and Cowan set forth certain results

contained in the recent medical records and offer opinion testimony about their

meaning.

II. Legal Argument

Question: Should the Declarations of Jay Cowan, M.D. and Stephen Schleicher, M.D. be stricken as beyond the scope of this Court’s May 26, 2016 order? Suggested Answer: Yes. Under Local Rule 7.7 absent a court order, the only papers permitted to be

filed on a motion are the moving papers, opposition papers and a reply. Local Rule

7.7. In this case, there was a motion to supplement the record, granted by this Court,

which permitted the filing of additional documents. But the order was specific. This

Court permitted the Plaintiff to file the exhibits attached to his moving papers and

permitted the DOC defendants to file the exhibits attached to their opposition papers.


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In addition, this Court stated that it expected to receive all medical records generated

after December 2015, any updates on the DOC’s hepatitis C policy, and documents

concerning that policy. Finally, this Court expected “any other documents that bear

on the current state of Plaintiff’s health and treatment.” (Doc. 125, p. 4).

The Cowan and Schleicher declarations should be stricken because they are

beyond the scope of this Court’s May 26, 2016 order. They are not medical records.

They do not concern the DOC’s hepatitis C policy. Finally they are not “documents

that bear on the current state of Plaintiff’s health and treatment”. Rather, the Cowan

and Schleicher declarations constitute testimonial opinion.

Dr. Cowan, who is not one of Mr. Abu-Jamal’s treating physicians, begins his

declaration by simply setting forth facts that appear in the filed medical records. (Doc.

134, ¶¶ 2-4). But he then goes beyond the facts and proceeds to offer opinions he has

drawn from those test results. These include his opinions regarding the relationship

between the hepatitis C infection and Mr. Abu-Jamal’s hyperglycemia, hemoglobin

count and skin condition. He also opines that Mr. Abu-Jamal could be appropriately

cared for through the so-called hepatitis C clinic (Doc. 134, ¶¶ 5-10). This is opinion

testimony, not a “document” that bears on plaintiff’s health and treatment.

The bulk of Dr. Schleicher’s declaration is a simply recounting of what is

contained in the medical records. For example, he acknowledges that the records

show that the rash has persisted and that the itching has increased. In response, Dr.

Schleicher has increased ultraviolet light therapy sessions and tried a host of other


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treatments. However, none of these have resolved the condition. At the conclusion

of his declaration he opines, once again, that the skin condition is unrelated to the

HCV infection.

Plaintiff will be prejudiced if the declarations are permitted to remain in the

record. In their opposition to Plaintiff’s motion to supplement, the DOC defendants

requested that should the motion be granted they be permitted to supplement the

record with additional medical records. Plaintiff did not oppose that request. This

Court’s order permitting the filing of additional “documents” should not be used as a

vehicle to file additional opinion evidence. The declarations are akin to a sur-reply, a

pleading not authorized by the Local Rules and one that a District Court may

disregard. Cf. Guicciardi v. Bond Products, Inc. 28 F.Supp.3d 383, 393 (E.D. Pa. 2014).

Should the instant motion be denied, plaintiff respectfully requests the record

on the preliminary injunction motion be supplemented to include the Supplemental

Declaration of Joseph Harris, M.D., filed herewith. As Dr. Harris states, while Mr.

Abu-Jamal’s symptoms may “wax and wane” they will only resolve and further

progression avoided, if the hepatitis C is treated.

Dated: June 8, 2016

Respectfully submitted,

/s/ Bret D. Grote Bret D. Grote PA I.D. No. 317273 Abolitionist Law Center


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P.O. Box 8654 Pittsburgh, PA 15221 Telephone: (412) 654-9070 [email protected]

/s/ Robert J. Boyle Robert J. Boyle 277 Broadway Suite 1501 New York, N.Y. 10007 (212) 431-0229 [email protected] NYS ID# 1772094 Pro hac vice

Counsel for Plaintiff


mailto:[email protected]


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CERTIFICATE OF SERVICE

I hereby certify that I served a copy of this Brief in Support Plaintiff’s Motion

to Strike upon each defendant in the following manner:

Service Via ECF:

For Defendants Kerestes, DelBalso, Norris, Oppman, and Steinhart: Laura Neal, Esquire

Pennsylvania Department of Corrections 1920 Technology Parkway Mechanicsburg, PA 17050

[email protected]

For Defendants Lisiak, Khanum, and Saxon: Samuel H. Foreman, Esquire

Caitlin Goodrich, Esquire [email protected] [email protected]

Fore Defendant Geisinger Medical Center:

Jack Dempsey, Esquire Myers, Brier & Kelly, LLP

425 Spruce Street, Suite 200 Scranton, Pennsylvania 18503

[email protected]

s/ Bret D. Grote Bret D. Grote Abolitionist Law Center P.O. Box 8654 Pittsburgh, PA 15221

Dated: June 8, 2016






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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE

DISTRICT OF PENNSYLANIA

MUMIA ABU JAMAL,

Plaintiff,

-against- 15-CV-0967

JOHN KERESTES, et al.,

Defendants.

DECLARATION OF ROBERT J. BOYLE IN SUPPORT OF MOTION TO STRIKE

ROBERT J. BOYLE, an attorney, hereby declares pursuant to 28 U.S.C. §1746

that the following is true and correct:

1. I am one of the attorneys for Mumia Abu-Jamal and submit this

Declaration in support of his motion to strike the declarations of Jay

Cowan, M.D. (Doc. 134) and Steven Schleicher, M.D. (Doc. 135).

2. The declarations should be stricken as they are beyond the scope of this

Court’s May 26, 2016 order.

3. On May 26, 2016 this Court granted plaintiff’s motion to supplement the

record on the motion for a preliminary injunction (Doc. 125). The Order

section of the decision authorizes and requires the parties to file specific

items. Plaintiff was permitted to file 1) medical records attached to his


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motion to supplement as Exhibit 1, and 2) Mumia Abu-Jamal’s April 3,

2016 declaration.

4. The DOC defendants were permitted to file Exhibits 1through 4 attached

to their opposition papers. In addition, the Court stated that it was

Expecting to receive [] additional medical records post-dating the December 2015 evidentiary hearing, any updates of DOC policy regarding hepatitis C treatment and any other documents that bear upon the current state of the Plaintiff’s health and treatment as well as documents that demonstrate the changes in DOC policy which effect Plaintiff’s treatment. (Decision and Order, Doc. 125).

5. On June 6 the DOC defendants filed, in addition to the documents

permitted by this Court’s order, supplemental declarations by witnesses who

testified at the December 2015 hearing, to wit, Jay Cowan, M.D. (Doc. 134)

and Stephen Schleicher, M.D. (Doc. 135).

6. The Cowan and Schleicher declarations do not fall into any of the categories

of materials authorized by the May 26 order. They are not medical records.

They do not address any changes in DOC hepatitis C policy. And, even if

broadly construed, they are not “documents” that bear upon the plaintiff’s

current state of health. Instead, they constitute additional opinion

evidence.1

1 The Declaration of John Steinhardt (Doc. 136) is also arguably beyond the scope of what was authorized by this Court’s May 26 order. Plaintiff is not, however, seeking to strike it.


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7. Dr. Cowan and Schleicher describe medical records already filed. They then

offer their opinions as to their meaning, including any relationship to

Plaintiff’s HCV infection (Cowan Sup. Dec. ¶¶ 3-10; Scheicher ¶ 17). This

is opinion testimony, not documents that bear upon the current state of

plaintiff’s health.

8. For example, Dr. Cowan opines, based upon the April 13, 2016 blood work

that plaintiff’s condition is stable because he has a platelet count of 141

which yielded an APRI score of .39. This, he stated, indicates that it is

“unlikely” that plaintiff has cirrhosis. Yet Dr. Cowan omits the fact that the

141 count is still below normal.2 They have now been abnormally low for

eight months.3 Moreover, as he himself testified at the December 2015

hearing, a .39 APRI score is indicative of significant fibrosis and that Mr.

Abu-Jamal has, at least, level 2 fibrosis. (Cowan: V2, 209, 211).

9. If the declarations remain part of the record, plaintiff will be prejudiced.

Plaintiff reasonably interpreted this Court’s order as only permitting the

filing of documentary evidence about Mr. Abu-Jamal’s health, not additional

2 According to the Mayo Clinic, the normal range is 150 to 450.

http://www.mayoclinic.org/tests-procedures/complete-blood-

count/basics/results/prc-20014088.

3 See Doc. 129, pp. 383, 384 and 386. See also Hearing Plaintiff’s Ex. 1, p. A121-122, A124-A126.


http://www.mayoclinic.org/tests-procedures/complete-blood-count/basics/results/prc-20014088

http://www.mayoclinic.org/tests-procedures/complete-blood-count/basics/results/prc-20014088

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opinion testimony in the form of a declaration.4 Plaintiff will be unable to

respond to the assertions contained in the declarations by offering a

supplemental declaration from his own expert.

10. I have discussed the recent medical records and the Cowan and Schleicher

declarations with Dr. Joseph Harris. He informed me that Mr. Abu-Jamal’s

symptoms will “wax and wane” but his issues will not resolve and further

disease progression will not be foreclosed unless the hepatitis C is treated.

11. Should this Court deny this motion to strike, it is respectfully requested that

this Court permit the record to be supplemented with the declaration of Dr.

Joseph Harris attached hereto as Exhibit 1.

12. Given the time the motion for a preliminary injunction has been pending, it

is respectfully requested that briefing on this motion to strike be expedited.

Specifically, plaintiff requests that any opposition papers to this motion be

filed no later than June 13, 2016 and any reply by June 14, 2016.

WHEREFORE, for all the foregoing reasons this Court should issue an

order striking the declarations of Jay Cowan (Doc 134) and Stephen Schleicher

(Doc. 135) and granting such other and further relief as this Court deems just

and proper.

4 Mr. Abu-Jamal’s April 3, 2016 declaration only sets forth the facts of the symptoms he has been suffering. He does not offer opinions.


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Dated: June 8, 2016

ROBERT J. BOYLE


IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLANIA

MUMIA ABU-JAMAL Plaintiff, v. JOHN KERESTES, et al.

Defendants.

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Case No. 15-Cv-00967 (RDM)(KM)

Judge Robert D. Mariani Magistrate Judge Karoline Mehalchick

ELECTRONICALLY FILED

SUPPLEMENTAL DECLARATION OF JOSEPH HARRIS, M.D.

JOSEPH HARRIS, M.D. hereby declares pursuant to 28 U.S.C. §1746 that the

following is true and correct:

1. I am a physician licensed by the State of New York and was permitted to

give expert testimony at the December, 2015 hearing.

2. This declaration is submitted in response to the declarations of Jay Cowan,

M.D., Steven Schleicher, M.D., Paul Noel, M.D. and John Steinhardt.

3. Nothing in the declarations alter these basic, undisputed, medical facts. 1)

Mr. Abu-Jamal has an active, chronic hepatitis C infection. 2) It is likely

that he has significant liver scarring. 3) His risk of progression would be

reduced to zero if he were administered the latest anti-viral drugs. 4) There

is no medical reason to delay treatment. 5) Mr. Abu-Jamal’s “waxing and

waning” symptoms are consistent with what we projected in December.

Case 3:15-cv-00967-RDM Document 143-1 Filed 06/08/16 Page 1 of 2

Dated: June 7, 2016

Case 3:15-cv-00967-RDM Document 143-1 Filed 06/08/16 Page 2 of 2



















Documents

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE ... 6th... · the declaration of Mumia Abu-Jamal. The Court also permitted the defendants to supplement the record with medical