Free Response to Motion - District Court of Arizona - Arizona

1 TERRY GODDARD ATTORNEY GENERAL 2 ANNE STRATMAN (022301) 3 Assistant Attorney General 177 North Church Avenue, Suite 1105 4 Tucson, Arizona 85701-1114 (520) 628-6044 · Fax (520) 628-6050 5 [email protected] 6 Attorneys for Defendants 7 8 9 10 11 12 13 14 15 16 Defendants, by and through counsel undersigned, hereby respond to Plaintiff v. QUIRINO VALERAS, et al., Defendants. IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA PAUL EUGENE RHODES, Plaintiff, RESPONSE TO SECOND MOTION TO CORRECT DISCOVERY ISSUES No. CV04-0644 PHX-JAT (MS)

17 Rhodes' Second Motion to Correct Discovery Issues as follows: 18 1. On August 11, 2005, Defendants received Plaintiff's requests for production

19 to various Defendants. (See e.g. Requests for documents from Susan Buffington, attached 20 hereto as Exhibit A.) These requests included a request for manufacturer's information 21 guides that came with the medications he was prescribed for his skin condition. (Id.) 22 2. On October 3, 2005, Defendants responded that the Arizona Department of

23 Corrections ("ADC") does not have complete copies of the manufacturer's guides for the 24 medications he requested. (See Letter dated October 3, 2005, attached hereto as Exhibit 25 B.) 26 3. On October 13, 2005, Defendants received a request from Plaintiff for

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1 manufacturer information guides for eighteen specific listed medications. (See Plaintiff's 2 request for mfg's info guide, received October 13, 2005, attached hereto as Exhibit C.) 3 On October 31, 2005, Defendants responded by letter, reiterating its explanation that ADC 4 does not keep complete copies of manufacturer information guides, and providing 5 Plaintiff with drug information for the eighteen listed items retrieved via the internet. (See 6 Letter dated October 31, 2005, attached hereto as Exhibit D.) 7 4. Prior to taking his deposition of November 17, 2005, Plaintiff informally

8 raised his objection to Defendant's response regarding this issue.1 He also asked 9 Defendant's counsel to provide hard copies of the images that were taken for his 10 telemedicine consults with the dermatologist on June 12, 2003 and April 7, 2004. 11 Defendants' counsel agreed to further investigate these issues. 12 5. Defendants' counsel responded by letter dated December 5, 2005 to the

13 issues raised by Plaintiff at his deposition. The letter informed Plaintiff of the persons 14 responsible for telemedicine consultations and explained that no pictures existed at ADC 15 of the telemedicine consultations. With regard to drug information, Defendants provided 16 Plaintiff with "patient education sheets" available by the prison pharmacy for the eighteen 17 medications listed in Plaintiff's request of October 13, 2005. (See Letter dated December 18 5, 2005, attached hereto as Exhibit E.) 19 6. On December 29, 2005, Defendants received Plaintiff's "Second Motion to

20 Correct discovery issues." 21 7. In his Motion, Plaintiff indicated that he had viewed hard copies of the

22 pictures with Judy Aguilar to make sure the images were adequate prior to sending them 23 to the dermatologist. This issue was brought to Ms. Aguilar's attention, and she verified 24 25 Plaintiff also filed a Motion to Correct Discovery Issues raising the same concerns he discussed with Defendant's counsel at his deposition. (Dkt. 47.) Because Plaintiff has 26 raised these issues with Defendant's counsel informally and Defendant had already agreed to investigate them, the Motion was denied as premature. (Dkt. 49.)
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1 that no hard copies of the pictures taken for the telemedicine consultation of April 7, 2 2004, had been viewed between Ms. Aguilar and Mr. Rhodes. According to Ms. Aguilar, 3 Mr. Rhodes viewed images of the pictures taken for the telemedicine consultation of April 4 7, 2004, on her computer. No hard copies of either telemedicine consultation existed at 5 ADC. (See letter dated January 11, 2006, to Plaintiff in response to Second Motion to 6 Correct Discovery Issues, attached hereto as Exhibit F.) 7 8. In further inquiring and investigating this issue, it was discovered that

8 Carondelet Health Network at St. Mary's Hospital had made color copies of the 9 pictures/images for its medical file of the telemedicine consultations of April 7, 2004, and 10 of June 12, 2003, prior to deleting the images from the computer. 11 9. Prior to this newly discovered information, the scope of search for the

12 images of the telemedicine consultations of April 7, 2004, and of June 12, 2003, was 13 limited to the medical file maintained ADC. At the time that this issue was being 14 investigated, it was not apparent that a different source outside ADC had the printed 15 pictures of the images taken for these telemedicine consultations. Defendants have 16 requested and received copies of these images from Carondelet Health Network at St. 17 Mary's Hospital, and have in turn provided a copy to Plaintiff. (Exhibit F.) 18 10. Plaintiff's Motion also reiterates his request for manufacturer's information

19 guides for the eighteen listed medications. Defendants have again revisited this issue and 20 maintain its position that prison pharmacy does not keep or have the manufacturer's 21 information guides for the eighteen listed medications that Plaintiff has received over the 22 course of several years. (Exhibit F.) 23 11. The Affidavit of Marilyn Wand, a supervising pharmacist at the Lewis

24 Facility of the Arizona State Prison Complex in Buckeye, Arizona, who also provides 25 pharmacy services at the Yuma Facility of the Arizona State Prison Complex in Yuma, 26 Arizona, explains the procedures regarding drug prescriptions. (See the Affidavit of 3

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1 Marilyn Wand, attached hereto as Exhibit G.) 2 12. As explained in the affidavit, the manufacturer's information guides

3 provided in over-the-counter medication are not available by the prison pharmacy because 4 they are sealed and pre-packaged on an individual basis by the manufacturer prior to the 5 delivery to the pharmacy. (Id. at ¶ 4.) Since all information accompanying an over-the6 counter medication is passed directly to the patient receiving the medication, the prison 7 pharmacy does not have this information. (Id.) 8 13. As to prescription medications, most are received in volume by the prison

9 pharmacy, and are generally accompanied by only one drug information guide for each 10 volume shipment received, which is not available or provided to an inmate. (Id. at ¶ 5.) 11 In order for an inmate to obtain drug information for a prescribed drug filled by the 12 pharmacist, the inmate must request it by filling out a Health Needs Request form. (Id.) 13 The inmate in turn will receive a "patient education sheet" which is a print out generated 14 from a computer, containing substantially the same information received by the prison 15 pharmacy. (Id.) The patient education sheets that inmates receive are similar to the drug 16 information received by patients from pharmacies outside the prison system. (Id. at ¶ 6.) 17 14. The affidavit further explains that the Arizona Department of Corrections

18 (ADC) contracts with vendors for over-the-counter drugs and for prescribed drugs 19 received in volume. So the ADC has used several different vendors over the years, and 20 these vendors use several different drug manufacturers from which to supply drugs. 21 Therefore, obtaining manufacturer's information guides for medications provided in 22 prison would require a determination of which vendor was used during the relevant time 23 period at the relevant prison unit, and which manufacturer that vendor used to supply the 24 medication for each drug during that time. Even if this could be determined, if the vendor 25 or manufacturer was no longer being used by ADC, ADC may no longer have a copy of 26 the manufacturer's guide for that drug since it would not be currently prescribing 4

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1 medications by that manufacturer. (Id. at ¶ 7.) 2 15. The medication information issue has been fully explained to Plaintiff by

3 letter dated January 11, 2006, and by the Affidavit of Marilyn Wand, enclosed thereto. 4 (Exhibits F and G.) 5 Based on the forgoing, Defendants diligently pursued all efforts, including going

6 beyond their scope to search outside ADC to obtain color copies of the images for the 7 telemedicine consultations of April 7, 2004 and of June 12, 2003. This effort included 8 explaining the medication/drug information detailed in the affidavit of Marilyn Wand. 9 Therefore, Defendants respectfully request that this Court deny Plaintiff's second motion 10 in its entirety. 11 12 13 14 15 16 17 COPY of the foregoing mailed 18 this 13th day of February, 2006 to: 19 Paul Eugene Rhodes, #163870 ASPC-Florence-Central 20 Post Office Box 8200 Florence AZ 85232 21 22 s/bam 23 Secretary, Attorney General's Office
IDS05-0164/941754

RESPECTFULLY SUBMITTED this 13th day of February, 2006. TERRY GODDARD ATTORNEY GENERAL

s/Anne Stratman ANNE STRATMAN Assistant Attorney General Attorneys for Defendants

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