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Guerrero v. United States

United States District Court, C.D. California

November 25, 2014

Arthur B. Guerrero
United States of America, et al

Attorney(s) for Plaintiff(s): None Present.

Attorney(s) for Defendant(s): None Present.



Proceedings: Order: (1) GRANTING Defendant's Motion for Summary Judgment (Doc. No. 14 and (2) VACATING the December 1, 2014 hearing (IN CHAMBERS)

Before the Court is Defendant United States of America's Motion for Summary Judgment. (Doc. No. 14.) The Court finds this matter suitable for resolution without a hearing pursuant to Local Rule 7-15. For the reasons discussed below, Defendant's unopposed Motion for Summary Judgment is GRANTED and judgment will be entered against Plaintiff. The December 1, 2014 hearing is VACATED.


A. Procedural History

On June 6, 2013, Plaintiff Arthur Guerrero (" Plaintiff") filed a Complaint, in pro per, against Defendants United States of America and Chandra Shanks (" Shanks"). (Doc. No. 1) The Complaint alleges Shanks -- a Physician Assistant employed by the U.S. Department of Veterans Affairs (" VA") -- injured Plaintiff when she used a common neurological device, known as a Wartenberg pinwheel, to test sensation in Plaintiff's lower extremities. (Compl. at 3) Plaintiff alleges that as a result of Shanks's negligent use of the pinwheel he expiences permanent pain, numbness, and tingling in his feet as well as post-traumatic stress disorder symptoms. (Id.) Plaintiff asserts a claim of medical malpractice under the Federal Tort Claims Act, 28 U.S.C. § § 1346(b) & 2671, et seq., against Defendant United States (" Defendant").[1] (Id.)

On October 27, 2014, Defendant filed a Motion for Summary Judgment. (" Motion, " Doc. No. 14.) In support of the Motion, Defendant attached:

o Statement of Undisputed Facts (" SUF, " Doc. No. 14-2);
o Declaration of H. Ronald Fisk (" Fisk Decl., " Doc. No. 15);
o Declaration of Chondra Shanks (" Shanks Decl., " Doc. No. 16), attesting to three exhibits; and
o Declaration of Sekret Sneed (" Sneed Decl., " Doc. No. 17), attesting to two exhibits Plaintiff did not oppose the Motion.


A motion for summary judgment shall be granted when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The moving party must show that " under the governing law, there can be but one reasonable conclusion as to the verdict." Anderson, 477 U.S. at 250.

Generally, the burden is on the moving party to demonstrate that it is entitled to summary judgment. Margolis v. Ryan, 140 F.3d 850, 852 (9th Cir. 1998); Retail Clerks Union Local 648 v. Hub Pharmacy, Inc., 707 F.2d 1030, 1033 (9th Cir. 1983). The moving party bears the initial burden of identifying the elements of the claim or defense and evidence that it believes demonstrates the absence of an issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). When the non-moving party has the burden at trial, however, the moving party need not produce evidence negating or disproving every essential element of the non-moving party's case. Celotex, 477 U.S. at 325. Instead, the moving party's burden is met by pointing out an absence of evidence supporting the non-moving party's case. Id. The burden then shifts to the non-moving party to show that there is a genuine issue of material fact that must be resolved at trial. Fed.R.Civ.P. 56(e); Celotex, 477 U.S. at 324; Anderson, 477 U.S. at 256. The non-moving party must make an affirmative showing on all matters placed in issue by the motion as to which it has the burden of proof at trial. Celotex, 477 U.S. at 322; Anderson, 477 U.S. at 252; see also William W. Schwarzer, A. Wallace Tashima & James M. Wagstaffe, Federal Civil Procedure Before Trial, 14:144. " This burden is not a light one. The non-moving party must show more than the mere existence of a scintilla of evidence." In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010) (citing Anderson, 477 U.S. at 252). " The non-moving party must do more than show there is some 'metaphysical doubt' as to the material facts at issue." In re Oracle, 627 F.3d at 387 (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)).

A genuine issue of material fact exists " if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson, 477 U.S. at 248. In ruling on a motion for summary judgment, the Court construes the evidence in the light most favorable to the non-moving party. Barlow v. Ground, 943 F.2d 1132, 1135 (9th Cir. 1991); T.W. Elec. Serv. Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630-31 (9th Cir. 1987).


A. Plaintiff's Failure to Oppose Defendant's Motion

" Any party who opposes [a motion for summary judgment] shall serve and file with the opposing papers a separate document containing a concise 'Statement of Genuine Disputes' setting forth all material facts as to which it is contended there exists a genuine dispute necessary to be litigated." L.R. 56-1. Where, as here, a party fails to file opposing papers or evidence, the Court " may assume that the material facts as claimed and adequately supported by the moving party are admitted to exist without controversy." L.R. 56-3; see also Fed.R.Civ.P. 56(e) (" If a party . . . fails to properly address another party's assertion of fact as required by Rule 56(c), the court may: . . . (2) consider the fact undisputed for the purposes of the motion; (3) grant summary judgment if the motion and supporting materials -- including the facts considered undisputed -- show that the movant is entitled to it. . . ."). Thus, without an opposition or evidence from Plaintiff, the Court applies standards consistent with Rule 56 and determines whether Defendant's evidence demonstrates the absence of a genuine issue of material fact and whether Defendant is entitled to judgment as a matter of law. See Henry v. Gill Indus., Inc., 983 F.2d 943, 949-50 (9th Cir. 1993).

B. Defendant's Asserted Facts and Supporting Evidence

The following material facts are sufficiently supported by admissible evidence and are uncontroverted. They are " admitted to exist without controversy" for purposes of the Motion. L.R. 56-3 (facts not " controverted by declaration or other written evidence" are assumed to exist without controversy); Fed.R.Civ.P. 56(e)(2) (stating that where a party fails to address another party's assertion of fact properly, the court may " consider the fact undisputed for purposes of the motion").

On July 11, 2012, Plaintiff arrived at the VA for a Compensation and Pension examination as part of his request for an increase in his service-connected disability rating for peripheral neuropathy in both feet. (Shanks Decl. ¶ 6.) A service-connected injury is one that a veteran either received during his military service or that is somehow connected to the veteran's military service. (Id.) The VA provides certain benefits to veterans with service-connected injuries. (Id. ¶ 4.) In order to increase a disability rating, the VA requires that the claimant undergo a Compensation and Pension examination by a medical professional. (Id.)

At approximately 2:30 pm, Shanks called Plaintiff from the waiting room and took him into a private examination room. (Id. ¶ ¶ 6, 11.) Shanks introduced herself, told Plaintiff about the purpose of the examination, and obtained Plaintiff's medical history. (Id. ¶ 8.) After checking Plaintiff's reflexes and the sensation in his upper extremities, Shanks asked Plaintiff to take off his shoes, socks, and pants so that she could conduct a full test of his lower extremities. (Id. ¶ ¶ 9, 10) Patients are typically asked to remove outer clothing for a neurological examination of the lower extremities in order for the examiner to visually observe the examined areas and have access for testing. (Fisk Decl. ¶ 10.) Patient initially did not want to remove his clothing and became upset, but ultimately agreed. (Shanks Decl. ¶ ¶ 11-12.)

Shanks first conducted a light touch test on Plaintiff's legs using a plastic wire and her finger. (Id. ¶ 15.) Plaintiff reported that he had no feeling in either leg from the light touch test. (Id.) As a result of the absence of any reaction to the test, Shanks determined that she needed to conduct a sharp sensation test by using a Wartenberg pinwheel. (Id. ¶ 16.) A Wartenberg pinwheel is a neurological device, composed of either stainless steel or hard plastic, that is used to test sensation in patients who report an inability to feel touch sensation. (Fisk Decl. ¶ 12.) The pinwheel has small spikes radiating out from the wheel at intervals of approximately 1 centimeter. (Id.) In order to test sensation, the examiner grips the handle and rolls the spikes across a patient's skin while applying either light or moderate pressure. (Id.) The purpose of sensory testing in a neurological examination is to elicit a feeling from the patient, including the feelings of pain from sharpness -- which the pinwheel is designed to cause. (Id.) The degree of pressure to which a patient responds can indicate neurological damage. (Shanks Decl. ¶ 17.)

To test Plaintiff, Shanks rolled the pinwheel from Plaintiff's hip to foot one time on each leg and from knee to foot one time on each leg. (Id. ¶ ¶ 18-19.) Shanks rolled the pinwheel with just the pressure of the wheel, without exerting any additional pressure or force on the device. (Id. ¶ 19.) Shanks asked Plaintiff whether he could feel the pinwheel, and he responded the he felt it across each leg, down each leg, and across each foot. (Id. ¶ 20.) Plaintiff did not complain, or otherwise indicate any discomfort, during the examination. (Id. ¶ 21.) He did not tell Shanks to stop the examination, nor did he display any visible signs of pain. (Id. ¶ ¶ 22-23.)

After the conclusion of the examination, which took approximately thirty to forty-five minutes, Shanks pulled the curtain around the exam area to allow Plaintiff to dress in privacy. (Id. ¶ ¶ 24-25.) As Plaintiff dressed, Shanks began filling out paperwork while asking Plaintiff questions regarding his healthcare. (Id. ¶ 26.) Plaintiff answered these questions without any suggestion of pain or distress in his voice. (Id.) At some point, the curtain was pulled back and Plaintiff was fully dressed, exceptfor his shoes and socks. (Id. ¶ 27.) As Plaintiff began to put on his socks, he suddenly became visibly upset and angry with Shanks, telling her she had cut him. (Id.) Shanks examined Plaintiff's right foot, where he indicated, and observed four or five red pinpoint marks at the base of his toes. (Id. ¶ 28.) It is typical for a patient to develop redness and/or swelling from the use of the pinwheel. (Fisk Decl. ¶ 14.) Patients may also develop other transient reactions, like abrasions, scratches, or even tiny puncture wounds that may bleed a small amount. (Id. ¶ 14.) However, Shanks did not observe any blood, lacerations, or open wounds on Plaintiff's foot. (Shanks Decl. ¶ 28.)

Shanks apologized to Plaintiff, and told him that while she observed several dots from the pinwheel, she did not see any cuts. (Id. ¶ 30.) Plaintiff continued to angrily claim that Shanks had cut him, and insisted it had been deliberate. (Id. ¶ 31.) Since Plaintiff appeared so upset, Shanks asked him if he wanted to go to the emergency room at the VA facility, an offer Plaintiff declined. (Id. ¶ 32.) Shanks then asked if Plaintiff would like to go to Medical Media -- a department at the VA that takes photographs of patient's injuries -- to document the incident. (Id. ¶ 33.) Plaintiff said he would, so Shanks escorted him to the waiting area and asked the front desk staff to direct him to Medical Media. (Id. ¶ 34.) Plaintiff left the clinic without going to Medical Media. (Id.)


To establish a claim for medical malpractice in California, a plaintiff must show: " (1) a duty to use such skill, prudence, and diligence as other members of the profession commonly possess and exercise; (2) a breach of the duty; (3) a proximate causal connection between the negligent conduct and injury; and (4) resulting loss or damage." Chakalis v. Elevator Solutions, Inc., 205 Cal.App.4th 1557, 1571, 141 Cal.Rptr.3d 362 (2012). " The law is well settled that in a personal injury action causation must be proven within a reasonable medical probability based upon competent expert testimony." Id. (quoting Miranda v. Bomel Construction Co., Inc., 187 Cal.App.4th 1326, 1336, 115 Cal.Rptr.3d 538 (2010); Salasguevara v. Wyeth Laboratories, Inc., 222 Cal.App.3d 379, 385, 271 Cal.Rptr. 780 (1990) (" medical causation can only be determined by expert medical testimony").

Defendant argues that Plaintiff cannot set forth admissible evidence that demonstrates that the VA breached the standard of care through Shanks's administration of the pinwheel test. Defendant also argues Plaintiff cannot meet his burden to demonstrate through qualified expert opinion that any alleged breach by the VA caused Plaintiff's injuries. The Court agrees on both points.

Defendant submits the declaration of Dr. Ronald Fisk, a medical doctor who is Board-certified in Neurology. (Fisk Decl. ¶ 1.) Since 1976, Dr. Fisk has operated a private practice in neurology in Los Angeles; he has also been an attending physician at Cedars-Sinai Medical Center in Los Angeles since 1978. (Id.¶ 7.) Dr. Fisk declares he has used the Wartenberg pinwheel thousands of times throughout his medical career. (Id. ¶ 13.) He declares that based on his experience and his review of the medical records in this case, it his opinion that the VA used the same skill and diligence as others in the profession when Shanks used the pinwheel to test peripheral neuropathy in Plaintiff's lower extremities. (Id.) Dr. Fisk further declares that Plaintiff's reported reactions of swelling, redness, abrasions, and small, red marks do not demonstrate that Plaintiff breached the standard of care since such temporary reactions are common in patients after the use of the pinwheel. (Id. ¶ 15)

As this is an element of Plaintiff's medical malpractice claim, he would bear the burden at trial. The Court finds there is no genuine issue of material fact as to whether the VA breached its duty to Plaintiff. See Hanson v. Grode, 76 Cal.App.4th 601, 607, 90 Cal.Rptr.2d 396 (1999) (" When a defendant moves for summary judgment and supports his motion with expert declarations that his conduct fell within the community standard of care, he is entitled to summary judgment unless the plaintiff comes forward with conflicting expert evidence.")

As to causation, Dr. Fisk declares that a hard plastic pinwheel could not, within a reasonable medical probability, cause any of the permanent injuries that Plaintiff alleges in his complaint. (Id. ¶ 16.) He declares that he cannot conceive of any possible scenario where the use of a hard plastic pinwheel could produce the type of permanent injuries Plaintiff alleges. (Id. ¶ 17.)

Plaintiff has provided no expert testimony as to the causation of his alleged injuries. This alone would be sufficient to grant summary judgment. See Jones v. Ortho Pharmaceutical Corp., 163 Cal.App.3d 396, 402-403, 209 Cal.Rptr. 456 (1985) (in a medical malpractice action " causation must be proven within a reasonable medical probability based upon competent expert testimony. Mere possibility alone is insufficient to establish a prima facie case."); Robinson v. Kaweah Delta Hosp., 2010 WL 4624090, at *5 (E.D. Cal. Nov. 5, 2010) (in a medical malpractice case, finding " [i]n the absence of expert opinion on the applicable standard of care and causation, [plaintiff] is unable to establish essential elements of his claim" thus warranting summary judgment for the government.) However, the Court also credits Dr. Fisk's testimony that Plaintiff's alleged permanent injuries could not conceivably be caused by Shank's use of the Wartenberg pinwheel. Id. at *4 (a court " need not sua sponte review all of the evidentiary materials on file at the time the motion is granted, but must ensure that the motion itself is supported by evidentiary materials"). Based on the evidence provided by Dr. Fisk, as well as the lack of expert testimony from Plaintiff, the Court finds there is no genuine issue of material fact as to the causation element of Plaintiff's medical malpractice claim.

As the Court finds there is no genuine issue of material fact as to two elements of Plaintiff's medical malpractice claim, Defendant is entitled to summary judgment as a matter of law.


For the foregoing reasons, the Court GRANTS Defendant's Motion for Summary Judgment. The December 1, 2014 hearing is VACATED.




Pursuant to the Order filed herewith, Defendant's Motion for Summary Judgment is hereby GRANTED.

Therefore, IT IS ORDERED AND ADJUDGED that Plaintiff's Complaint is DISMISSED WITH PREJUDICE. The Court orders that such judgment be entered.

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