AUGUST 19, 2013

HONORABLE JAMES J. RASHID

JUDICIAL RESOURCE SERVICES, P.C

28800 8 MBLE RD., SUITE 11

FARMINGTON HILLS, MI 48336

RE: KELLER/ARMSTEAD V KALAMAZOO COUNTY JAIL, et al.

C/A# l:12-cv-00843-PLM

FACILITATION DATE: TUESDAY, AUGUST 20, 2013 @ 1 PM

DEAR JUDGE RASHID:

Enclosed please find Plaintiffs Supplemental Facilitation Summary with Certificate ofService regarding the above matter.

Thank you for your continued attention and cooperation.

cc: Allan C. VanderLaan, Esq.James L. Dyer, Esq.Daniel J. Harris, Esq.

Very truly yours,Fieger, Fieger, Kenney, Giroux, Danzig,

& Harrington, P.C.

Jeffrey A. Danzig

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

ELIZABETH KELLER, as Personal

Representative of the Estate ofAndrea Suzanne Armstead, deceased

Plaintiff,

File No: l:12-cv-00843-PLM

Hon. Paul L. Maloney

KALAMAZOO COUNTY, d/b/a KALAMAZOO COUNTYSHERIFF'S OFFICE, JAIL DIVISION, RON THARGE, RN,

CONRAD BITELY, RN, MICHAEL BBEREMA, RN, DEPUTY

ANDY SCHUILING, DEPUTY MARK BEAUMONT, andDEPUTY M. GRAY,

Defendants.

Law Offices of Daniel J. Harris, PC

DANIEL J. HARRIS (P58279)Co-Counsel for Plaintiff

410 Petoskey StreetPetoskey,MI 49770(231)347-4444

Fieger, Fieger, Kenney, Giroux & Danzig, PCGEOFFREY N. FIEGER (P30441)JEFFREY A. DANZIG (P36571)Co-Counsel for Plaintiff

19390 W. 10 Mile Road

Southfield, MI 48075

(248) 355-5555

Allan C. VanderLaan (P33893) James L. Dyer (P32544)Andrew J. Brege (P71474) Johnson, Rosait, Schultz & Joppich, P.C.Cummings, McClorey, Davis & Acho, PLC Attorneys for Defendants, Shull, Schuiling,Attorneys for Defendants Beaumont and Gray, Only2851 Charlevoix Drive, SE - Suite 327 303 S. Waverly RoadGrand Rapids, MI 49546 Lansing, Michigan 48917(616) 975-7470 (517) 886-3800

PLAINTIFFS SUPPLEMENTAL FACILITATION SUMMARY

This supplemental summary is filed in response to the summary recently received on

behalf of the County, the Sheriff and the nursing staff individually named in this cause of action.

There are a number of factual and legal points that merit a reply.

ANDREAS SUBJECTIVE AND OBJECTIVE SYMPTOMS

OF HEROIN WITHDRAWAL

It is the defendant's position that Andrea Armstead was completely asymptomatic at all

times she was encountered. In fact, Nurse Bierema, in his deposition, goes so far as to assertthat

there was nothing wrong with her until the panic button incident @ 5:45 am on 11/2/11. Bothhe

and the other two nurses named, claim that during their separate encounters with Andrea, she

appeared physically fine. Her condition was "good". She did not appear dope sick at any time.

She was happy, laughing, making jokes while sitting on the picnic table in AN05F and displayed

no outward appearance of having any problems or difficulties.

The proposition which they are attempting to advance here, is patently absurd and is

contradicted by other sheriff department data prior to her arrival at KCJ; by KCJ deputies who

observed her; by her cellmates that tried to help her; and by our medical experts who have

expertise regarding the progression of heroin withdrawal symptoms for someone with

Andrea's history and degree of usage. Our experts will opine, that any assertion that Andreawas

asymptomatic in the days and hours leading up to the event of 11/2/11 is preposterous.

Calhoun County Sheriffs

Before Andrea even arrived at KCJ, she was vomiting. The report from Deputy Curtis

Smith, Calhoun County Sheriffs Dept., documents that at the time of her arrest, Andrea was

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vomiting at the arrest scene and she reported that she was actively going through withdrawals.

Moreover, after Andrea's 11/2/11 panic button incident resulting in her death, KCJ staff,

obviously concerned about their potential liability, contacted Calhoun County Sheriffs Dept.,

and was informed by Cindi Wellman of the Calhoun County Jail Medical Dept. that Andrea had

reported to them that she was detoxing. She was not anticipating withdrawal, but rather, in the

process of actively detoxing. This will be an established fact prior to her arrival at KCJ.

KCJ Deputy Dipietro

Deputy Dipietro escorted Andrea from the receiving area to the holding cells on 10/30/11.

Andrea asked him if they could see the nurse on the way and he complied by taking her to see

Defendant Tharge. Andrea asked Nurse Tharge for Pepto for her stomach and Nurse Tharge

complied. Each of the defendant nurses testified that they considered Andrea's stomachproblem

consistent with nausea. Andrea then specifically asked Tharge if he had anything for heroin

withdrawals. Nurse Tharge replied that "he did not have anything to treat that". This was an

outright lie and Nurse Tharge admits in his deposition this was a lie (Dep, P. 46). It is Plaintiffs

position that his response was entirely consistent with his attitude of indifference toward the

medical needs of inmates, which mirrors the testimony of Nurse Van Epps.

KCJ Deputy Baits

Deputy Baits classified Andrea into the inmate population on 10/31/11 @ 8:00 pm,

while she was in the female holding cell. He determined that Andrea's reported heroin usage

required special conditions, i.e., medium security level, required close supervision by both her

cellmates and staff, and a cell with a panic button. Deputy Baits observed objective indicatorsof

heroin withdrawal symptoms, including rubbing her stomach, leaning on the wall for support and

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her jumpsuit unbuttoned to the waist.

Q. Might some of those indications, if she's walking in a certain way, holding herself in acertain

way, be indicative of a medical condition consistent with heroin withdrawals?A. It could, yes (Dep., p. 53-54).

Deputy Baits also became aware of subjective indications of heroin withdrawal, when

Andrea informed him that she was actively withdrawing from heroin.

Q. I want to know everything you determined to properly classify her for her condition andpotential needs.

A. That she was withdrawing from heroin at the time I classified her (Dep, p. 34).

Baits determined that her condition was "fair" which is inconsistent with the glowing

descriptions of Tharge, Bitely and Bierema. Moreover, he decided to report her condition to the

nursing staff (Bitely) immediately after his classification and he testified that he expected an

assessment and treatment of her medical needs by nursing staff, based upon his observations

during the classification process.

Q. Why would you have been telling her you were goingto inform medical?A. Because she was withdrawing from heroin (Dep, p. 59).

Q. So whatis the significance of withdrawing from heroin that you would wantto tell medical?A. So that they were awareof her withdrawals (Dep., p. 60).

Q. The reason why you went and told the nurseof her issue was because you knew that she hadboth reported heroin withdrawals and she appeared to have symptoms of heroinwithdrawals-

Q. Is that not true?A. Yes (Dep., pp. 74-75).

Andrea received no medical/nursing assessment and no treatment for heroin withdrawals

by anyone overthe courseof over 3 days at KCJ. It should be noted that on the screening forms

used by Deputy Barts, he notes that Andrea herself requested a medical assessment of her

condition, which obviously never took place. The reason is complete and utter indifference to

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her medical needs by the nursing staff at KCJ. When approached by Deputy Barts, Nurse Bitely

summarily dismissed him, since he had already given her a dose of Pepto, without assessment.

Angelina Spohn

We have previously provided an outline of her testimony, but it is important here to

highlight the objectivesymptoms which she observed at two separate time frames, first while in

the holding cell with Andrea and second, while on the way to AN05F.

When Andreaentered the holdingcell, Ms. Spohn could tell she was "dope sick". "You

could physically seethatshewasn't felling well" (Dep, p. 23). "She was constantly getting upto

puke" (Dep, p. 27). "It seemed a little-like extreme" (Dep, p. 27).

From the time that she walked in to the time that we walked down

to the holding together she was having a hard time holdingherself upandjust she didn't wantto keepherclothes on (Dep., p. 28).

While in the holding cell, Ms. Spohn advised a Deputy of hercondition and the fact that

she was experiencing withdrawals. She made this statement to theguard within a few hours of

Andrea's arrival in holding (Dep., p. 89). Moreover, Andrea began vomiting while in holding

notlong after herarrival, "maybe an hour" (Dep., p. 96). During her timein the holding cell,her

condition "definitely got worse" (Dep., p. 96). Shewas vomiting, sweating and shaking (p. 96).

Theguards would comeby, theywould tell Andrea to put her clothes on, Ms. Spohnadvised

that she was withdrawing and their responsewas "so what". At no time while they were in

holding did anyone offer to help her. She has testified that while in the guards presence, Andrea

was throwing up. Someone brought her Pepto (Bitely) and she threw up after she ingested it.

By the time they were escorted up to AN05F by two guards, "Andrea needed assistance in

getting up and walking" (Dep, p. 97). Ms. Spohn has testified that at this juncture, it was5

obvious to anybody who would look at her that she was in distress (Dep., p. 99). "I mean she

was hunched over, sweating, breathing heavy, throwing up a lot" (Dep., p. 99). When Andrea

arrived at AN05F, that first night, she could hear Andrea throwing up. It was disturbing every

one in the cell block. It was loud. From AN06F, Ms. Spohn could hear Andrea's cellmates

requesting medical attention for Andrea. She heard the cellmates telling the guards "she is really

sick, she needs some help" (Dep, p. 100). She is also aware that the cellmates were writing .kites.

Ms. Spohn identifiedDeputy Beaumontas one of the officers that "would just ignore Andrea"

and would make smart comments, calling her a rat and some other vulgar names. Ms. Spohn

further testified that a guard walked by hercell andstated "that is what she gets" (Dep., p. 42).

The Cellmates

We have previously outlined theirtestimony andthe objective indications of Andrea's

active heroin withdrawals. Briefly, theydescribe Andrea, from the time of her arrival at AN05F

as weak, lethargic, constantly puking, suffering hot andcold sweats, diarrhea, restless, laying in

her boat rockingback and forth with severe stomach cramps. She could not hold anythingdown

that she tried to ingest. They had to help her get up to go to the bathroom. Her condition was

deteriorating and it was obvious. They pleaded for medical assistance and the guards would

either laugh, make a snide comment or advise that they had alreadyinformed medical. This is

entirely consistent with NurseBitely's admission that a guardhad informed him that Andrea

was vomiting. Bitely's testimony, like that of Bierema, is that Andrea was laughing and joking,

sitting on the picnic table having a good old time. Nobody will believe such lies, which fly inthe

face of what was about to occur, within 24 hours.

Nurse Van Epps

Nurse Van Epps testimony cannot be undervalued in this setting. His description of the

nursing staff's indifference to inmates medical needs mirrors their indifference to Andrea's

obvious active withdrawal symptoms. Van Epps describes a philosophy of indifference with

respect to inmates rights, inmates need for medical attention and nurses response to kites. He

was so upset with the lack of basic care for the inmates, that he went to Capt. Shull and advised

him of his concerns with respect to Nurse's Tharge and Bitely. Capt. Shull told himemphatically

that Nurse Thargewas the examplethat he needed to follow. According to Van Epps, kiteswere

treated by Nurse Tharge as unimportant, they could wait, theywereput on the backburner,

which is entirely consistent withTharge and Bitely's stated belief that all inmates were fakers

and liars and were treated accordingly.

Plaintiffs Experts

The following is an excerpt from Michael Hackett's Rule 26 Report. Mr. Hackettis an

expert in criminal justiceandcorrections, having served as the Administrative Services Manager

for one of the largest jail systems in the United States:

In the matter before this court, Ms. Armstead was suffering from heroinwithdrawals. During my career I have witnessed hundreds of individuals

who were withdrawing from use of heroin in a jail setting and have spokenwith many of them during and after withdrawals. They describe sleeplessness,agitation, lack of appetite, nausea, vomiting, diarrhea, joint pain, runny noses,and fever and chills. The symptoms of withdrawal as I've witnessed thembegin a few hours after the last dosage, depending on the individual's tolerancefor the drug, the purity and the amount of the drug used and become moreintense in the next two to three days. Based upon my experience, I wouldexpect that Ms. Armstead would have followed a similar course. Accordingto witness accounts, Ms. Armstead did experience most of these symptoms.

While confined at the KCJ, Ms. Armstead received virtually no medical carefor her heroin withdrawals. She was given a pre-entry health screen and admitted

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heroin use, but did not receive a medical assessment. She saw a nurse at bookingbut did not receive a medical assessment. She admitted heroin use duringclassification and did not receive a medical assessment. Her cellmates submitted

requests for medical care on her behalf and she did not receive a medicalassessment or treatment. She submitted a request for medical care herself anddid not receive a medical assessment or treatment, unless one wants to

characterizea third dose of Pepto-Bismol medical treatment for opiate withdrawal.

It became standard practice in the corrections industry to provide medicalintervention to those withdrawing from opiates, not only to preserve life, butto lessen suffering and misery. It remains a standard practiceto medicallyintervene during the withdrawal process and there is a medical protocol in placeat KCJ for just that purpose. Unfortunately, in the case of Ms. Armstead, thatprotocol was never applied and she sufferedneedless pain and ultimately death.

The following is an excerpt from Joe Goldenson, M.D.'s Rule 26 Report. Dr. Goldenson

hasbeen qualifiedby numerous stateand federal courts as a medical expert in Correctional

Medical Services and remedial plans for the provision of medical care in penal systems.

Ms. Armstead was exhibiting signs and symptoms of severe withdrawal whichwould have been evident to the nursing staff if they had assessed her condition.Ms. Armstead's cellmates testified that she was weak and vomiting and noteating or drinking almost the entire time she was in the cell. I do not normallyrely on deposition testimony from either staff or inmates, because it is givenafter the events have taken place and may not accurately reflect what actuallyhappened. However, in this case, given the facts that 1) Ms. Armstead diedfrom complications of heroin withdrawal and 2) these complications take daysto reach the point where they are life threatening, it is more likely than not thather cellmates descriptions of Ms. Armstead's condition are accurate. Inaddition, the paramedics reported that Ms. Armstead had been vomiting and

having diarrhea for two days and the emergency room physician reported thatMs. Armstead had had episodes of vomiting, diarrhea and decreased oral intake.In all likelihood, they obtained this information from KCJ staff as they did nothave contact with her cellmates.

In my opinion, based upon my training, experience and extensive knowledge ofcorrectional health care, the failure of the nursing staff at KCJ to follow theirown protocol and monitor and treat Ms. Armstead's heroin withdrawal lead toher untimely death. The actions and inactions of the medical staff fall well belowthe accepted standard of care. Their failure to adequately address her serious signsand symptoms of heroin withdrawal constitutes deliberate indifference, therebyviolating the constitutional protection afforded inmates.

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LEGAL ANALYSIS-DELIBERATE INDIFFERENCE

As Defendant's acknowledge in their summary, Plaintiff must show Andrea Armstead

had a serious medical need and that Defendant's, being aware of that need, acted with deliberate

indifference. Withdrawal symptoms are a serious medical condition by law.

A constitutional claim for denial of medical care has objective and subjective

components. The objectivecomponent requires the existenceof a sufficiently serious medical

need. The inmate must show that he/she is incarcerated under conditions posing a substantial

risk of serious harm. Plaintiff asserts that Deputy Bartsclassification, in and of itself, clearly

establishes the objective component. Andrea was actively experiencing withdrawal symptoms

and required both medical assessment and medical treatment in order to protect her from harm.

The subjective componentrequires an inmate to show that prison officials have a

sufficiently culpable state of mind in denying medical care. This subjective component should

be determined in light of the prison authorities current attitudes and conduct. In this instance,

when one considers the factual testimony of Nurse Van Epps, Ms. Spohn and the cellmates, it

becomes clear that both the nurses and the officers acted with callous disregard and deliberate

indifference to the medical needs of Andrea Armstead.

Providing Pepto-Bismol is notconsidered medical treatment for heroin withdrawal by any

stretch of the imagination. Thesimple truth is that thenursing staffgave Andrea Pepto to

get rid of her. If anything, the Peptoamounts to providing care which is so cursory, so as to

amountto no treatment at all for her presenting and known condition. The nursing staff were

repeatedly told she was withdrawing. Her condition was obvious, according to Barts, Spohn and

the cellmates. At the first medical encounter, Tharge lies by telling her they have "no treatment"

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for this condition. From that point forward, the nursing staff were completely and utterly

indifferent to her worsening condition, ignoring cellmates pleas for help, ignoring Barts request

for medical assessment and treatment, ignoring kites authored by cellmates and by Andrea and

ignoring her obviously deteriorating condition. The attitudes displayed and the language usedby

both officers and nursing staff toward Andrea, as attested to by her cellmates in response to

repeated pleas for help, is the equivalent of intent to punish her for being a drug user in distress.

CONCLUSION

Nojudge or jury will buy into the argument that Andrea Armstead was completely

asymptomatic rightup until the time of the 11/2/11 earlymorning panicbuttonevent. Three

different nurses saw Andrea and none attempted to either assess her condition or provide her

with treatment for active heroin withdrawals symptoms, which began before she even entered

KCJ. The jail protocols were violated in numerous respects. Nurse Tharge lied to Andreaabout

what was available to help her presenting condition. Andrea sought medical help for her

deteriorating condition, as did Deputy Barts, as did her various cellmates, both in holding and

while on AN05F. Both officers and nursing staff treated her like a dog, with the intent on

punishing her for being a drug user.

Andrea's former cellmates are a testament that addiction can be overcome and that one

can lead a productive life following drug addiction. Defendant's should recognize the likelihood

of a substantial jury verdict, inclusive of punitive damages that far exceeds Plaintiffs current

demand, should this case proceed to trial.

Dated: August 19, 2013

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Respectfully Submitted,

Fieger, Fieger, Kenney, Giroux, Danzig &Harrington

BY:

Geoffrey N. Fieger (P30441)Jeffrey A. Danzig (P36571)Attorneys for Plaintiffs Estate19390 W. 10 Mile Rd.

Southfield, MI 48075(248) 355-5555

And

Law Offices of Daniel J. Harris, PLC

BY:

Daniel J. Harris (P58279)Co Counsel for Plaintiffs Estate

410PetoskeySt.Petoskey, MI 49770(231)347-4444