Wayne J. Jewell v. United States 11-CV-324-SM 2/22/13 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Wayne J. Jewell. Plaintiff

v. Case No. ll-cv-324-SM Opinion No.

United States of America, Defendant

O R D E R

This is a medical malpractice case brought against the

United States under the Federal Tort Claims Act, which operates

as a limited waiver of the government's sovereign immunity from

suit. Under its provisions, the government may be held liable

for torts committed by its employees, acting within the scope of

their employment, to the same extent that a private person would

be liable under the law of the state in which the tort was

committed. See

(b)(1).

Plaintiff says that in October of 2009, federal employees

(Veteran's Administration physicians and other medical care

providers) negligently performed a colonoscopy, for which he was

unprepared, that caused him to suffer physical injuries. As the

alleged negligence occurred in the Veteran's Affairs Medical

Center in this state, New Hampshire's medical negligence law

applies. Under New Hampshire law, a plaintiff in a medical negligence

case bears the burden of proving, "by affirmative evidence which

must include expert testimony of a competent witness," the

following elements: 1) the standard of reasonable care in the

medical specialty at issue; 2) that the medical care provider

failed to meet that standard when providing medical care to the

plaintiff; and 3) that the medical care provider's failure to

meet that standard proximately caused injuries to the plaintiff

that otherwise would not have occurred. N.H. Rev. S t a t . Ann.

("RSA") ch. 507- E :2 (emphasis supplied). See also Heckles v.

Madden,

(2010); Smith v. HCA Health Servs. of

N . H . . Inc..

(2009).

Plaintiff in this case is acting pro se, and while he

insists that he should not have to disclose or produce expert

testimony to establish medical negligence, he is mistaken. The

Magistrate Judge's Report and Recommendation (document no. 7)

unambiguously informed plaintiff that, under the governing state

law, he must introduce expert medical testimony to carry his

burden of proof. .Id. at 7. Plaintiff was unpersuaded. The

pretrial scheduling order made it clear that plaintiff was

required to disclose the identity of, and reports by, his expert

witnesses on or before July 1, 2012. He failed to do so.

Subsequently, in response to a motion to compel, plaintiff was

2 ordered to supplement his interrogatory answers to provide

defendant with specific information about the time and place of

the alleged negligent procedure. See Document no. 24. He failed

to comply.

In August of 2012, the government filed a motion for summary

judgment. That motion (again) gave plaintiff unequivocal notice

of his statutory obligation to produce admissible expert medical

evidence to support his claims. In fact, the principal ground on

which the government sought judgment was that plaintiff failed to

disclose any such expert by the deadline set in the pretrial

scheduling order. But, rather than seek an opportunity to obtain

such evidence, or to make a late disclosure of his expert(s),

plaintiff ignored the motion for summary judgment and remained

silent. The government then sought a continuance of trial until

after its motion was resolved, reminding plaintiff that his

response to the summary judgment motion was past due. Plaintiff

ignored the reminder and, again, failed to file an objection or

any other response to the government's pending motion.

By January of this year, the government's motion had been

pending for five months, plaintiff had yet to object, and, on the

record presented, it was plain that the government was entitled

to judgment as a matter of law. Nevertheless, recognizing

3 plaintiff's pro se status, the court afforded him additional

latitude. So, rather than simply granting the government's

motion, the court issued an order giving plaintiff an opportunity

to show cause why summary judgment should not be entered in the

government's favor. Plaintiff was again informed that under

applicable law he must present expert medical evidence to support

his claims, and he was invited to address the critical issues

raised in the government's pending motion. See Order to Show

Cause (document no. 32).

Plaintiff's response to the show cause order is inadequate.

Despite numerous reminders from the magistrate judge, the

government, and the court that he must secure a medical expert in

order to prevail on his malpractice claim, he remains unpersuaded

of that obligation and it is clear that he has made no effort to

comply with it. At this juncture, it is plain that any further

delay in ruling upon the government's pending motion would serve

no useful purpose.

Discussion

Because Jewell failed to object to the government's motion

for summary judgment, the court will take as admitted the factual

statements recited in the government's motion, as supported by

the attached exhibits. See Local Rule 7.2(b)(2) ("All properly

4 supported material facts set forth in the moving party's factual

statement shall be deemed admitted unless properly opposed by the

adverse party."). See also McCrorv v. Spigel,

(1st Cir. 2001) ("Although we view the evidence in the light most

favorable to the nonmovant, as to any essential factual element

of its claim on which the nonmovant would bear the burden of

proof at trial, its failure to come forward with sufficient

evidence to generate a trialworthy issue warrants summary

judgment to the moving party.") (citations and internal quotation

marks omitted).

I. Expert Medical Testimony is Required.

The government makes a persuasive argument that the October,

2009, medical procedure that gives rise to plaintiff's claims

simply did not occur, and that plaintiff is likely confused about

the course and timing of his various treatments over the years at

the Veteran's Administration medical facility. The government

has proffered admissible evidence showing that the plaintiff's

extensive medical records do not disclose any such colonoscopy

procedure, either at the time alleged or at any time reasonably

close to the time alleged (according to his medical records, the

last colonoscopy plaintiff received at the VA was in November of

2008). And, again, plaintiff did not comply with the Magistrate

Judge's order to provide specific information about the time and

5 place of the alleged procedure. Nor did he object to the

government's motion, so the court has taken the government's

properly supported factual assertions as true - including those

attesting to the fact that the October, 2009 procedure of which

plaintiff complains never occurred.1

But, at this juncture, whether plaintiff actually had a

colonoscopy at the VA medical facility in October of 2009 is

immaterial. Even assuming he did, he has not pointed to any

expert opinion evidence suggesting that the medical professionals

who performed the (alleged) procedure deviated from the

applicable standard of care. That is fatal to his claim because,

as the Supreme Court has observed,

the plain language of Rule 5 6 (c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be "no genuine issue as to any material fact," since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial. The moving party is "entitled to a judgment as a matter of law" because the nonmoving

1 To be fair, while he still has not properly responded to the government's motion, plaintiff did submit a declaration (document no. 34), in which he insists that he did undergo a colonoscopy at the VA Medical Center in October of 2009.

6 party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of pro o f .

Celotex Corp. v. Catrett,

(1986). Because

plaintiff's claims are ones for medical injury that require

expert testimony, and because he has not proffered admissible

evidence or testimony by an expert medical witness with respect

to the elements described in RSA 507-E:2, there is no genuine

dispute as to any material fact with respect to those essential

elements and defendant is entitled to judgment as a matter of

law .

II. Plaintiff's Requested Relief.

In his response to the court's show-cause order, plaintiff

did include a brief and conditional request for additional time

to procure expert medical evidence, but that request is

undeveloped and insufficient. See Plaintiff's Response to the

Court's Order of January 13, 2 013 (document no. 33) ("If the

court believes that an improper colonoscopy cannot be shown in

this case without prior expert testimony, Jewell requests

assistance in obtaining such a witness, or be given a further

opportunity to find such a witness.").

Federal Rule of Civil Procedure 5 6 (d) provides that if a

nonmovant shows, "by affidavit or declaration" that "for

7 specified reasons, it cannot present facts essential to justify

its opposition" to summary judgment, the court may allow time to

obtain the necessary evidence. Plaintiff has given no reason, by

affidavit or declaration or otherwise, why he has yet to present

expert medical evidence as required (despite numerous reminders

that such evidence is critical to his case). Nor has he

suggested a plausible reason to think that he might be able to

obtain the requisite evidence in the reasonably near future.

Accordingly, the court declines to defer consideration of

the government's motion any longer. See Fed. R. Civ. P. 56(d).

Conclusion

For the reasons given, as well as those provided in the

memorandum supporting the government's motion for summary

judgment and its reply to plaintiff's response to the court's

show cause order, the government is entitled to judgment as a

matter of law on the sole count of plaintiff's complaint. Its

motion for summary judgment (document no. 21_) is, therefore,

granted.

8 The Clerk of Court shall enter judgment in accordance with

this order and close the case.

SO ORDERED.

^teven J/ McAuliffe nited States District

February 22, 2 013

cc: Wayne J. Jewell, pro se T. David Plourde, AUSA

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