Mailhot v . American Red Cross 12-CV-103-SM 7/25/13 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Larry R. Mailhot, Plaintiff

v. Case N o . 12-cv-103-SM Opinion N o .

American Red Cross, Defendant

O R D E R

Pro se plaintiff, Larry Mailhot, brings this action against

the American Red Cross (“ARC”), seeking damages for injuries he

says he suffered when he donated blood platelets at an ARC

donation center. Mailhot claims to have sustained permanent

injuries, including nerve damage, as a result of ARC’s negligent

placement of a needle in his right arm. ARC moves for summary

judgment, on grounds that Mailhot has failed to disclose an

expert witness and, under applicable state law, that failure is

fatal to his medical negligence (malpractice) claims.

For the reasons stated, the court is constrained to agree

that, as a matter of law, Mailhot cannot sustain his burden of

proof without a medical expert. Accordingly, ARC’s motion for

summary judgment is necessarily granted. Standard of Review

When ruling on a motion for summary judgment, the court must

“view the entire record in the light most hospitable to the party

opposing summary judgment, indulging all reasonable inferences in

that party’s favor.” Griggs-Ryan v . Smith,

1 2 , 115

(1st Cir. 1990). Summary judgment is appropriate when the record

reveals “no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” Fed. R. Civ.

P. 56(a). In this context, “a fact is ‘material’ if it

potentially affects the outcome of the suit and a dispute over it

is ‘genuine’ if the parties’ positions on the issue are supported

by conflicting evidence.” Int’l Ass’n of Machinists & Aerospace

Workers v . Winship Green Nursing Ctr.,

(1st

Cir. 1996) (citations omitted).

Mailhot has not objected to ARC’s motion for summary

judgment.1 Accordingly, the court will take as admitted the

factual statements recited in that motion, as supported by the

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

supported material facts set forth in the moving party’s factual

statement shall be deemed admitted unless properly opposed by the

1 On May 3 , 2013, Mailhot filed an assented-to motion, seeking additional time (until June 7 ) to object to ARC’s motion for summary judgment. The court granted that motion, but Mailhot never filed an objection.

2 adverse party.”). See also Cordi-Allen v . Halloran,

5 ,

28 (1st Cir. 2006); McCrory v . Spigel (In re Spigel),

7 , 31 (1st Cir. 2001). It does not, however, “automatically

follow” that ARC is entitled to summary judgment. Stonkus v .

City of Brockton Sch. Dep’t,

7 , 101 (1st Cir. 2003).

The court must still determine whether the uncontested facts

presented by ARC, when viewed in the light most favorable to

Mailhot, entitle ARC to judgment as a matter of law.

at 102

(citing Fed. R. Civ. P. 56(e)).

Background

On February 2 5 , 2010, Mailhot donated platelets at an ARC

donation center in Manchester, New Hampshire. As part of that

process, he reviewed and signed both a generic blood donor

consent form and a more specific informed consent form for

apheresis blood collection. See Exhibits B1 and B3 to

Defendant’s Memorandum (documents n o . 14-5 and 1 4 - 7 ) . Both

documents advised him of the risks associated with blood

donations, which included the rare possibility of nerve or

arterial damage.

The procedure lasted about 90 minutes, during which an ARC

phlebotomist checked on Mailhot three times. Each time, she

checked a box on a form that reported Mailhot was “ok.” See

3 Apheresis Procedure Record (document n o . 14-6) at 3 . At his

deposition, Mailhot testified that when he left the donation

center, he felt “great.” Deposition of Larry Mailhot (document

n o . 14-3) at 7 7 . Subsequently, however, Mailhot began

experiencing pain in his right arm. He says his primary care

physician referred him to a specialist in the Department of

Neurology at Dartmouth Hitchcock Manchester. See Complaint at

para. 1 6 . Moreover, says Mailhot, he “received no physical

relief from the right arm pain or function [sic] resulting from

medical treatments.”

at para. 1 7 . Importantly, however, he

does not describe how (or even whether) the consulting specialist

diagnosed his injury, nor does he assert that the specialist

concluded there was a causal relationship between the injury and

ARC’s alleged negligence.

Construed in the light most favorable to Mailhot, the

complaint advances three common law negligence (medical

malpractice) claims: first, that employees or agents of ARC

negligently inserted a needle into his right arm, which resulted

in permanent and painful nerve injury; second, that ARC failed to

adequately warn him of the potential risks associated with

donating platelets - that is to say, he did not give “informed

consent” to the procedure; and, finally, that ARC negligently

trained the phlebotomist who inserted the needle into his arm.

4 Discussion

New Hampshire law provides that in any “action for medical

injury” against a “medical care provider,” the plaintiff:

shall have the burden of proving by affirmative evidence which must include expert testimony of a competent witness or witnesses:

(a) The standard of reasonable professional practice in the medical care provider’s profession or specialty thereof, if any, at the time the medical care in question was rendered; and

(b) That the medical care provider failed to act in accordance with such standard; and

(c) That as a proximate result thereof, the injured person suffered injuries which would not otherwise have occurred.

N.H. Rev. Stat. Ann. (“RSA”) 507-E:2, I (emphasis supplied).

Similarly, if a plaintiff asserts that “a medical care provider

failed to supply adequate information to obtain the informed

consent of the injured person,” that claim, too, must be

supported by expert witness testimony. RSA 507-E:2, I I . Should

a plaintiff fail to disclose such an expert, he cannot sustain

his burden of proof and his claims are subject to summary

disposition. See, e.g., Dent v . Exeter Hosp., Inc.,

(2007) (affirming trial court’s entry of summary judgment in

favor of defendant, based on fact that plaintiff failed to

disclose an expert witness); Bissett v . Renna,

5 (1998) (affirming dismissal of medical negligence claim for

failure to provide competent expert witness testimony).

So it is in this case. Mailhot has not disclosed an expert

medical witness to support his medical malpractice claims against

ARC. The time for disclosing expert witnesses lapsed more than

five months ago and Mailhot never sought to extend that deadline.

Consequently, as a matter of New Hampshire law, ARC is entitled

to summary judgment on all claims advanced in Mailhot’s

complaint.

Parenthetically, the court notes that neither party has

addressed whether ARC is a “medical care provider,” as defined in

RSA 507-E:1, II (thereby implicating the expert witness

requirements set forth in RSA 507-E:2). But, even if ARC does

not meet that statutory definition, the resolution of its motion

for summary judgment remains the same. In short, Mailhot claims

he was the victim of medical malpractice when an ARC phlebotomist

negligently inserted a needle into his right arm. Even absent

the statutory requirements of RSA ch. 507-E, he would still be

required to introduce expert medical testimony to prove his case,

since determining whether the phlebotomist violated the relevant

standard of care and proximately caused Mailhot’s injuries is

“plainly beyond the knowledge and experience of a lay jury; it

6 requires the application of special experience and training.”

Brann v . Exeter Clinic, Inc.,

(1985) (citing

Michael v . Roberts,

(1941)). See also Martin v .

Wentworth-Douglass Hosp.,

(1987) (affirming trial

court’s dismissal of malpractice claims arising out of

phlebotomist’s alleged negligence, when plaintiff failed to

produce expert testimony on the issues of negligence and

causation at trial).

Conclusion

For the foregoing reasons, as well as those set forth in

defendant’s memorandum, ARC’s motion for summary judgment

(document n o . 14) is granted.

The Clerk of Court shall enter judgment in accordance with

this order and close the case.

SO ORDERED.

C^ ' ^^^'^•^^

Siteven J. McAuliffe Jnited States District Judge

July 2 5 , 2013

cc: Larry R. Mailhot, pro se CharCretia V . Di Bartolo, Esq. Geoffrey M . Coan, Esq. Paula-Lee Chambers, Esq.

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