By Frank G. Runyeon

Law360 (May 1, 2020, 2:22 PM EDT ) A prison health expert condemned the health care in Brooklyn's Metropolitan Detention Center amid a COVID-19 outbreak at the facility, citing a failed response to the virus and the alleged intentional destruction of medical records in a scathing report to a New York federal court Thursday night.

After reviewing prison records and touring the 1,700-inmate facility where he interviewed 17 inmates, Dr. Homer Venters excoriated the medical care at MDC in his expert report. Venters, a medical doctor and epidemiologist who previously served as the chief medical officer for New York City's jails, cited an array of problems including faulty virus screening, ignored and discarded sick-call requests, inept medical care, and a "gross deviation" from Centers for Disease Control and Prevention and correctional health care standards.

"The net effect of these failings is that individuals within the MDC will be infected with COVID-19 and they will be identified at a dangerously late stage of infection," Venters wrote.

The report later added, "MDC is therefore not prepared to effectively contain any outbreak of COVID-19 — its practices put detainees and staff at grave risk of infection, serious illness and even death."

The Federal Bureau of Prisons fired back on Friday with a motion to strike the entire report or to depose Venters for a second time to question him about his findings.

In his report, filed in a class petition brought by inmates seeking release from the prison, Venters said sick inmates are not being identified because prison officials do not react appropriately to their pleas for medical attention. Nurses do not always respond to sick calls, but when they do, they often only take an inmate's temperature, he wrote. Nurses also do not ask inmates about their symptoms and do not physically examine them as they should, the report found.

Venters also noted that inmates are receiving poor medical care for non-COVID-19 related illnesses. Two inmates reported having asthma attacks, Venters said, but the nurse failed to perform a basic assessment — listening to their lungs and gauging their breathing — and instead merely took their temperature.

"These responses raise the concern that MDC is not only failing to provide adequate COVID-19 response, but is failing to provide the most basic assessment of patients in other types of medical distress or emergency," Venters said.

The expert detailed dire conditions inside the prison, recounting how prisoners screamed to him that they were cold inside their cells during his April 23 inspection. Venters said plumes that detainees describe erupting from toilets could be spreading the virus through "fecal-oral transmission of COVID-19 between cellmates."

Venters described several infection risks, including COVID-19-positive inmates sharing a unit with inmates not suspected of having the virus, one of whom was recently hospitalized, and some guards who were not wearing face masks or gloves.

"The MDC's response to COVID-19 is largely reliant on a broken sick-call system that does not function adequately," Venters said.

According to the report, the prison has ignored inmates' requests for medical attention and routinely destroys those paper requests, which Venters called a "very alarming practice" that appears to amount to the "intentional destruction of medical records."

MDC Health Services Administrator Stacey Vasquez said in a deposition that the sick-call papers are never scanned and are destroyed because they may be infected with the virus, an explanation Venters called confusing because the paper is handled by a series of people before it arrives at the prison clinic.

He said the destruction of the paper sick-call requests means that the prison therefore "does not know how many requests were made, and how many were responded to," making it impossible for the facility to know if inmates are getting proper care.

Venters described how the only two men currently isolated after testing positive for COVID-19 said their initial requests for medical attention were ignored for days even after the first reported "shortness of breath, chills, weakness to the extent he could not get out of bed, and loss of taste and smell — all of which are signs of COVID-19 infection."

Both men, whose names are redacted, initially made multiple attempts to see a nurse, submitting paper and electronic sick-call requests and speaking to orderlies and security staff. A nurse eventually came, took one man's temperature, and left when it was normal, the report said. The men then came out of their cells multiple times "to eat, shower, and be on the unit," according to the report.

Days later, after several more sick-call requests, the men were transferred to the isolation unit, the report said. Since that time, the COVID-19-positive inmate said he has not been examined and no one has listened to his lungs with a stethoscope. They wear loose-fitting surgical masks when they are taken out of their cells for showers, according to the report.

There is no record of that inmate's sick call requests in his medical records and no record of any medical care whatsoever over a recent 10-day period, a lapse that "is likely to create dramatically higher rates of serious illness and death due to late appreciation of deterioration," Venters said.

The doctor ended his report with a list of 19 "simple procedures" as recommendations, including improved screening, disease surveillance, medical care, quarantine, testing, disinfection, and availability of personal protective equipment that he "would have expected" the prison to have implemented during the outbreak.

"It is evident that the MDC has failed to implement straightforward best practices derived from the CDC guidelines as well as outbreak best practices," Venters concluded. "I am therefore concerned about the ongoing health and safety of the population at the MDC, and the likelihood of the continued spread of COVID-19 therein."

Venters' inspection of the locked-down federal facility included an examination of various wings of the detention center, which houses both pretrial detainees and sentenced prisoners. On-site visits have been banned and communication restricted since the lockdown began in mid-March in response to the pandemic.

The emergency class petition before U.S. District Judge Rachel P. Kovner claims the Brooklyn prison has violated vulnerable inmates' Fifth Amendment or Eighth Amendment protections against "deliberate indifference" and cruel and unusual punishment by failing to enact basic COVID-19 safeguards.

Release, the inmates argue, is the only means of protecting them from MDC's "unconstitutional treatment." Continued incarceration "in conditions where it is virtually impossible to take steps to prevent transmission of an infectious disease ... will prove deadly because of petitioners' vulnerable condition," according to the inmates' refreshed writ of habeas corpus filed last week.

The inmates' attorneys have argued that a lack of testing likely means far more inmates are infected with the novel coronavirus than is currently known. Just 13 inmates had been tested as of Thursday, while MDC had 1,646 inmates as of Friday, according to the Federal Bureau of Prisons. A total of six inmates have tested positive at some point.

The prison is seeking to dismiss the lawsuit, slamming the civil rights petition as an effort to "short-circuit the entire criminal justice process."

In its motion to strike Venters' report on Friday, the government said that the inmates' counsel had violated U.S. Magistrate Judge Roanne L. Mann's order giving them the option of either submitting an expert report or submitting Venters for a deposition without the benefit of a signed report.

By providing Venters for a deposition at 8 a.m. on Thursday morning — when he said he hadn't yet written a report, did not have his notes, and could not recall which inmates he based his findings on — and then having Venters submit a report 12 hours later, the government argued that the inmates' counsel were unfairly "shielding Dr. Venters from a deposition at which his expert report would be questioned in depth."

If the court allows Venters' report to stand, the government requested that it be allowed to question the prison health expert again for up to two hours before a preliminary injunction hearing on May 12 — "with any deposition costs borne by petitioners."

The inmates' counsel did not immediately respond to a request for comment on the government's motion.

The class of vulnerable inmates is represented by Alexander A. Reinert and Betsy R. Ginsberg of the Benjamin N. Cardozo School of Law, and Katherine Ruth Rosenfeld and O. Andrew F. Wilson of Emery Celli Brinckerhoff & Abady LLP.

The government is represented by James R. Cho and Seth D. Eichenholtz of the U.S. Attorney's Office for the Eastern District of New York.

The case is Chunn et al. v. Edge, case number 1:20-cv-01590, in the U.S. District Court for the Eastern District of New York.

--Editing by John Campbell.

For a reprint of this article, please contact reprints@law360.com.