UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

JAMES ROY HILL, III, ))

Plaintiff, ))

v. ) Case No. 4:02CV646 CDP
)
GARY CAMPBELL, ))
Defendant. )

MEMORANDUM AND ORDER

Plaintiff James Roy Hill, an inmate at the Northeast Correctional Center,
brought this action under 42 U.S.C. § 1983 against Gary Campbell, a doctor
employed by Correctional Medical Services, which provides medical care to
Missouri prisoners. Hill alleged that Dr. Campbell was deliberately indifferent to
his serious medical needs (a deteriorating hip replacement) by delaying a referral to
an orthopedic specialist for a period of sixteen months.
The jury found that Dr. Campbell was liable for deliberate indifference, and
assessed Hills actual damages in the amount of $75,000. The Court entered
judgment in accordance with the jury verdict. Dr. Campbell has now filed a motion
to alter the judgment and for remittitur and a motion for new trial or for judgment as
a matter of law. Plaintiff has filed a motion for attorneys fees and costs.

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Background
Hill had a hip replacement in 1993, and the evidence showed that the
resolution from this surgery was not good. Hills complaints of pain predated his
transfer to the Northeast Correctional Center, which occurred in April of 1998.
After he arrived at Northeast, he made several medical requests and complained of
pain in his hip. Doctors at Northeast first recommended that Hill be referred to an
outside orthopedic specialist in June of 1998. Again in July and August of 1998,
facility doctors requested referrals to an orthopedic specialist, and these requests
were also denied.
The evidence was contested regarding whether Dr. Campbell denied all the
early referral requests. Dr. Campbells duties and responsibilities included assuring
that appropriate medical care was given to all inmates, and this included reviewing
requests for referrals, which he did on a regular basis. Another doctor also
reviewed referral recommendations, and the records listed her as the reviewing
doctor on one occasion. The medical records were unclear on most of the other
denials. Those records did reflect, however, that other doctors who had examined
Hill consulted or noted that they intended to consult with Dr. Campbell regarding
the denials of referrals. Although he denied that he was the one who denied the
requests, Dr. Campbell admitted that he may have discussed plaintiffs case with

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these other doctors on several occasions.
In response to plaintiffs continued complaints of pain, in October of 1998,
another facility doctor, Dr. Taylor, recommended an orthopedic referral. Dr.
Campbell denied this referral request, but did agree to examine Hill himself.
Dr. Campbell examined Hill on October 27, 1998. From this examination Dr.
Campbell concluded that at some time I expected he would need another hip. I see
that years away. Dr. Campbell admitted that he did not review the x-rays of Hills
right hip and leg that were taken at that time, although he testified that he reviewed
the June 18, 1998 x-rays. After this examination, Campbell again denied Hills
requests to see an outside orthopedic consult.
Hill complained of his hip pain to his first cousin, Russell Gunn, who was a
Missouri State Representative at the time. In the Missouri General Assembly, Gunn
served on committees that had the authority to approve, deny, or limit state funding
to the Department and to CMS. Gunn contact Dora Schriro, Supervisor of the
Department, and later participated in a telephone conference with Campbell, Hill,
and individuals with the Department. Ultimately, in September of 1999, Hill saw
another facility doctor, Dr. Williams, who also requested an outside referral. This
request, unlike the previous one, was granted, and eventually Hill had surgery to
replace the prosthesis. The surgeon who performed the replacement testified that

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the former prosthesis had migrated and subsided, and that the surgery had been
indicated at least since the x-rays in the summer of 1998. This successful surgery
resolved Hills problems.
Motion for New Trial or for Judgment As a Matter of Law
In considering a motion for new trial the district court must consider whether
the verdict is against the weight of the evidence and if allowing it to stand would
result in a miscarriage of justice. Adzick v. Unum Life Ins. Co., 351 F.3d 883 (8th
Cir. 2003). To obtain a new trial because of evidentiary error, the moving party
must show that the evidentiary ruling was so prejudicial as to require a new trial
which would be likely to produce a different result. ODell v. Hercules, Inc., 904
F.2d 1194, 1199 (8th Cir. 1990). Trial errors must be pervasive to warrant
granting a new trial. Van Steenburgh v. Rival Co., 171 F.3d 1155, 1161 (8th Cir.
1999).
Defendant makes several claims of trial error, most related to what he says
was the improper admission of hearsay testimony. For the most part, defendants
arguments about hearsay are not accurate statements of the trial testimony. Two
inmates, Mason and Hollman, were allowed to testify as to their observations of
Hill. They testified that he walked with a limp, that he appeared to be in pain, that
he frequently needed assistance to get around the prison grounds, and often missed

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meals or programs because he could not walk there. Hollman, Hills former cellmate,
testified that Hill had difficulty sleeping and often needed help getting into his
bunk. Mason, who was Hills former co-worker, testified that there were times he
had to do some of Hills tasks because Hill could not move from the desk easily.
These inmates testified to their own observations, and their testimony was not
inadmissible hearsay.
Hills cousin, State Representative Russell Gunn, testified as to his own
actions in telling the prison officials about Hills problems, and he testified to
statements made to him by defendant Campbell. His testimony was not
inadmissible hearsay. To the extent he testified that he told prison officials things
that Hill had told him, his testimony was not admitted for the truth of Hills
statements, but for the fact that Gunn had notified the prison of the problems. The
evidence showed that certain actions happened after the conversations Gunn had
with prison officials. This was non-hearsay evidence from which the jury could
draw an inference that the ultimate approval of Hills surgery was related to Gunns
prompting.
Defendant claims the court should not have allowed plaintiff to testify as to
what he was told by other doctors, specifically that Dr. Obando told him that Dr.
Campbell had denied a referral. Plaintiffs lawyer was careful on direct examination

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not to elicit hearsay testimony from plaintiff regarding what others said to him, but
of course, for plaintiff to tell of his attempts to get treatment, some statements of the
other CMS employees did come into evidence. The vast majority of these were
things confirmed by the medical records. On direct, plaintiff testified that Dr.
Obando said he would call Dr. Campbell and request that the outside referral be
granted. Dr. Obandos medical records, which were admitted in evidence without
objection, stated that he informed Hill that he had talked to Dr. Campbell regarding
the request for an outside consultation. It was only on cross-examination of
plaintiff when defendants lawyer asked plaintiff if he now knew that the records
showed that Dr. Conley had been the one to deny the early referral, that plaintiff
stated that Dr. Obando said he was on the phone with Dr. Campbell. This testimony
was elicited by defense counsel, on cross-examination. Its admission was not
improper.
The court sustained an objection to defense counsels arguing the legal
meaning of deliberate indifference in opening statement. I do not believe this was
error, and to the extent it was, it was cured by the Courts final instructions to the
jury, which defined the term.
Plaintiffs counsel elicited testimony from Dr. Campbell and another state
witness to the effect that CMS is a for-profit company, that Dr. Campbell owns
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stock options, that Dr. Campbells bosss bonuses were related to profitability, and
that referrals to outside doctors cost CMS money and had a direct impact on their
profitability. This was all true, it was elicited to show bias, and it was not
inadmissible or unduly prejudicial.
Defendant also argues that a new trial should be granted because the verdict
is against the weight of the evidence. As discussed in more detail regarding
defendants request for judgment as a matter of law, I believe the evidence was
more than sufficient to support the verdict, and is not against the weight of the
evidence.
Judgment as a matter of law may be granted only when there is no legally
sufficient evidentiary basis for the jurys verdict. E.E.O.C. v. Kohler Co., 335 F.3d
766, 772 (8th Cir. 2003). It is appropriate only when all of the evidence points one
way and is susceptible of no reasonable inference sustaining the other partys
position. Childrens Broadcasting Corp. v. The Walt Disney Company, 357 F.3d
860, 863 (8th Cir. 2004); Racicky v. Farmland Indus., Inc., 328 F.3d 389, 393 (8th
Cir. 2003). In ruling on this motion I must view the evidence in the light most
favorable to the prevailing party, plaintiff.
Defendant is not entitled to judgment as a matter of law. The jury had
sufficient evidence from which it could find that Dr. Campbell was deliberately

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indifferent to Hills serious medical needs. The evidence showed that Hills hip
prosthesis had loosened and that the portion of it that was inserted into his leg had
subsided and was essentially sinking into his leg. He repeatedly complained of pain
and several doctors recommended that he be referred to an outside orthopedist for
evaluation. As soon as he was finally referred to an outside doctor, replacement
surgery was recommended and ultimately undertaken. The medical witnesses
agreed that a decision to undertake hip replacement surgery is often based on how
serious the pain is, and that surgery is necessary when pain is extreme. It was
Campbells denial of the referrals for a lengthy period of time when plaintiff was in
extreme pain that constituted deliberate indifference, and there was ample evidence
of this.
Dr. Campbell testified that he never denied any referrals, for any patient,
because under the CMS system requests for referrals are only deferred, and are
never denied. This testimony was not credible, given the other evidence showing
that denials had taken place. The jury could certainly conclude that Dr. Campbell
was playing with semantics to avoid taking responsibility for his actions. This was
especially true because there was other evidence of denials. Dr. Campbell
testified that he was called by Dr. Obando about Hill, but he said he could not
remember what Dr. Obando told him. He testified that when he finally examined

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Hill, he looked at his June 1998 x-rays, which he said were inconclusive, but he did
not look at the x-rays from October of 1998, which much more clearly showed the
problem. He had no explanation for why he did not look at the other x-rays. He
testified that Hill was angry and hostile and refused to be examined, and that he did
not recall whether Hill asked him for a referral to an outside doctor. He testified
that he intended to perform sclerotherapy on Hill, but was unable to do so because
of Hills hostile behavior. But Dr. Campbells note in the medical records is not
consistent with this testimony. Dr. Campells note has no mention of sclerotherapy
or of Hills alleged refusal to cooperate, but it does mention that Dr. Campbell told
Hill he would not send him out for an outside evaluation. While Dr. Campbell said
he never denied a request to refer Hill to an outside consultant, he admitted on
cross-examination that the records reflect at least three occasions where doctors
indicated they would consult with Campbell about such a referral, and he admitted
that he may have had several consultations with Dr. Obando or others about the
need for an outside consultation. The jury had ample evidence, including the
medical records, from which to determine that Dr. Campbells denial of involvement
was not credible, and that Dr. Campbell had denied earlier requests as well as the
October 1998 request. The evidence showed that the October 1998 x-rays indicated
a serious problem.

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The doctor who ultimately performed Hills surgery testified that the June
1998 x-rays, which Campbell admits he examined, showed that the old prosthesis
was obviously loose, and that the September of 1999 x-rays, which finally led to
approval of the surgery, showed that the hip was only slightly worse by then. From
this the jury could infer that Dr. Campbell was deliberately indifferent to the
seriousness of the condition and the extent of Hills pain. From all of this evidence,
the jury could reasonable conclude that Dr. Campbell was deliberately indifferent to
Hills serious medical need for an outside referral to an orthopedist because his hip
replacement was moving and deteriorating and he was in great pain. That this was a
serious problem no one denied, as all the medical witnesses agreed that improper
hip replacements could lend to loss of mobility and a persons becoming wheelchair
bound, and all agreed that the condition was painful.
Motion to Alter or Amend Judgment and for Remittitur
Dr. Campbell moves to alter or amend the judgment or for remittitur because
there was no evidence of lost wages, medical expenses or other expenses incurred.
The jury award of $75,000 in actual damages reflected only compensation for pain
and suffering.
Remittitur should be granted only where the verdict is so grossly excessive as
to shock the conscience of the Court. Ouachita Natl Bank v. Tosco Corp., 716

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F.2d 485, 488 (8th Cir. 1983). A verdict is not excessive unless there is plain
injustice or a monstrous or shocking result. Jenkins v. McLean Hotels, Inc.,
859 F.2d 598, 600 (8th Cir. 1988). The Eighth Circuit has held that awards for
pain and suffering are highly subjective and should be committed to the sound
discretion of the jury. Frazier v. Iowa Beef Processors, Inc., 200 F.3d 1190, 1193
(8th Cir. 2000); see also Morrissey v. Welsh Co., 821 F.2d 1294, 1299 (8th Cir.
1987); Stafford v. Neurological Med., Inc., 811 F.2d 470, 475 (8th Cir. 1987).
Plaintiff has cited numerous Eighth Circuit employment discrimination cases
where pain and suffering and/or emotional distress awards were as high as this
award or higher. See, e.g., Mathieu v. Gopher News Co., 273 F.3d 769 (8th Cir.
2001)($165,000); Foster v. Time Warner Entertainment, 250 F.3d 1189 (8th Cir.
2001)($75,000); Kientz v. McDonnell Douglas Corp., 990 F.2d 1051 (8th Cir.
1993)($125,000); Muldrew v. Anheuser-Busch, Inc., 728 F.2d 989 (8th Cir. 1984)
($125,000). Missouri personal injury cases have numerous examples of much
higher awards for pain and suffering. See e.g., Goede v. Aerojet General Corp.,
2004 WL 1047968 (Mo. Ct. App. May 11, 2004)(award of $2 million for pre-death
pain and suffering over a two year period did not shock the conscience); Redfield v.
Beverly Health & Rehabilitation Services, Inc., 42 S.W.3d 703 (Mo. Ct. App.
2001)($2 million for loss of companionship and for pain and suffering over a three

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day period before death was not excessive).
Plaintiff presented evidence that he suffered substantial pain and suffering
over a period of more than a year when Dr. Campbell was denying his requests for
referral to an outside specialist. He testified to constant pain and to an inability to
engage in many aspects of daily life at the prison. This testimony was corroborated
by other inmates who directly observed plaintiff and by the logical inference from
the medical records the prison doctors who kept requesting that Hill be seen by an
outside specialist must have believed his repeated complaints of pain and suffering,
or they would not have made the respected requests for referral. Although jurors
might be tempted to discount plaintiffs pain and suffering because he is in prison, it
appears they did not do so here, and it would have been wrong for them to do so.
Pain and suffering is not diminished merely because a plaintiff is in prison. The
evidence supported the jurys award; I cannot say that the award is outrageous or
shocks the conscience.

Attorneys Fees and Costs

Under 42 U.S.C. § 1988, reasonable attorneys fees may be awarded to a
prevailing plaintiff, and I believe they should be awarded here. Under the Prison
Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(d)(2), however, attorneys fees
are limited, and a portion of the judgment is required to be used to pay the fees.

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Plaintiff challenges the constitutionality of this statue, but the Eighth Circuit has
upheld it, and I must therefore apply it to this case. See Foulk v. Charrier, 262 F.3d
687, 702-704 (8th Cir. 2001); see also Johnson v. Daley, 339 F.3d 582 (7th Cir.
2003), cert. denied 124 S.Ct. 1654 (2004).
Plaintiffs counsel was court appointed in this case and engaged in reasonable
efforts to prepare the case for trial. She neither over-prepared it nor under-prepared
it. Her hourly charges and the amount of time spent is reasonable, as are the costs
and expenses she incurred. She is experienced in handling medical cases, and the
bills all appear quite appropriate. The only item I would not normally approve is the
charge for IT administrator time, which I believe is part of a law firms overhead,
and should not be charged for separately as part of attorneys fees. Were it not for
the PLRA, I would award counsel the full amount of fees for attorney time,
paralegal time and expenses, or $53,467.96, and I would separately award the
taxable costs. This amount is reasonable and meets all the tests for appropriateness
that apply in the absence of the PLRA. As stated, however, I must award a lesser
amount under the PLRA.
Under the attorneys fees section of the PLRA, 42 U.S.C. § 1997e(d), the fee
must be directly and reasonably incurred in proving an actual violation of the
plaintiffs rights. § 1997e(d)(1)(A). Defendant argues that some of counsels time

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was spent on claims which were not proven. I have reviewed the bills and agree
that 12.7 hours of attorney Lockwoods time was spent on discovery related to
claims that plaintiff did not prove, as these hours related to claims against other
defendants that did not survive summary judgment. I believe the other hours
claimed were directly incurred in proving the claim on which plaintiff prevailed. I
have not reduced the time for briefing and research on the summary judgment
issues, because counsel would have been required to spend essentially the same
amount of time had Dr. Campbell been the only defendant seeking summary
judgment.
Defendant argues that paralegal and law clerk time must be compensated as if
this were a case under the Criminal Justice Act. The PLRA does not require this.
Subsection (d)(3) of § 1997e merely states that the attorneys fee cannot be awarded
based on an hourly rate greater than 150 percent of the hourly rate established
under section 3006A of Title 18 for payment of court-appointed counsel. This
provision incorporates only the hourly rate from the CJA. It does not incorporate
any of the other limits of 18 U.S.C. § 3006A. Those other limits, such as limits on
experts, and limits on having persons other than the appointed counsel performing
legal work, have no applicability here. In this case, counsel chose to use paralegals
and law clerks to do work that counsel would have otherwise undertaken. This is a

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reasonable approach to take in a civil case such as this and reduces the fees
charged. The attorneys fees can include the hours these other persons expended,
subject to the other limits of the PLRA.
The hourly rate for payment of court-appointed CJA counsel in this district is
$90 per hour, whether that time was in court or out of court. This is the appropriate
rate to apply to determine the limits on the hourly rates available under §
1997e(d)(3). The paralegal and law clerk rates of $80 per hour are reasonable and
are within this limit. The rates charged by the attorneys, $175 and $200, exceed the
statutory limits, and so the attorneys hours charged at these rates will be reduced to
the hourly rate of $135 per hour, which is 150% of $90.
Using these figures, the amount of fees and expenses recoverable (exclusive
of taxable costs) is $37,540.96. Under § 1997e(d)(1)(B), I find that this amount is
not disproportionate to the damage award of $75,000. That is, it is proportionately
related to the court-ordered relief of $75,000 for the violation that was proved, and
so satisfies §1997e(d)(1)(B)(i).
Defendant argues that it should not have to pay the fee under subsection
(d)(2), which provides that a portion of the judgment (not to exceed 25 percent)
shall be applied to satisfy the award of attorneys fees, and the excess shall be paid
by the defendant. Twenty-five percent of $75,000 is $18,750, and so that amount

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shall be paid by defendant from plaintiffs judgment of $75,000. Defendant shall
pay the remaining amount of $18,790.96 to plaintiffs attorneys.
Plaintiffs costs are also reasonable, as they all related to depositions that
were reasonably necessary for the recovery of the award in this case. Depositions
of other doctors involved in plaintiffs care were reasonable and necessary for the
claim against Dr. Campbell, even if no claim was brought or sustained against those
other doctors. The PLRA does not provide limits on costs otherwise properly
recoverable under 28 U.S.C. § 1920, and these are properly taxable. Costs in the
amount of $1,695.60 will be taxed against defendant.
Accordingly,

IT IS HEREBY ORDERED that defendants motion to alter or amend
judgment and for remittitur [#93] and his motion for new trial or judgment as a
matter of law [#94] are denied.
IT IS FURTHER ORDERED that plaintiffs motion for bill of costs [#96]
is granted and the Clerk of Court shall tax as costs plaintiff shall recover from
defendant the amount of $1,695.60.
IT IS FURTHER ORDERED that plaintiffs motion for attorneys fees and
expenses is granted in part and denied in part, and the plaintiff shall recover the sum
of $37,540.96 as attorneys fees and expenses. Defendant shall pay counsel $18,750

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of this from the judgment defendant owes plaintiff; defendant shall pay the
remaining amount of $18,790.96 from other funds.

_______________________________
CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
Dated this 24th day of June, 2004.