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Martin v. United States

United States District Court, E.D. California

July 5, 2017

DARIN MARTIN, Plaintiff,


          Troy L. Nunley United States District Judge.

         This matter is before the Court on Defendant Untied States of America's (“Defendant”) Motion for Summary Judgment (ECF No. 11). Plaintiff Darin Martin (“Plaintiff”) opposes the motion. (ECF No. 12.) Defendant filed a reply. (ECF No. 16.) Having reviewed the briefing filed by both parties and for the foregoing reasons, the Court hereby DENIES Defendant's Motion for Summary Judgment (ECF No. 11).

         I. Factual and Procedural Background

         On October 29, 2013, Plaintiff went to the health services clinic at the Federal Correctional Institution at Herlong, California. (Defendant's Statement of Undisputed Facts (“SUF”), ECF No. 11-2 ¶ 1.) Plaintiff complained of skin problems on the fifth toe of his left foot. (SUF ¶ 1.) Plaintiff alleges Ronald Burnett, RN, treated Plaintiff for a plantar wart and applied Verruca Freeze to the affected area. (SUF ¶¶ 1-2.) Plaintiff alleges Burnett misdiagnosed the skin problem as a wart instead of a corn and improperly applied freezing agent. (SUF ¶ 2.) The freezing agent was applied twice and in both instances leaked from the affected area causing burns on all of his toes and the ball of his foot. (Plaintiff's Suppl. Statement of Undisputed Facts, ECF No. 12-1 ¶¶ 8-9.) Plaintiff received treatment for several months to heal the burns. (ECF No. 12-1 ¶ 10.)

         Plaintiff submitted an Administrative Tort Claim to the United States Department of Justice Federal Bureau of Prisons on December 3, 2013. (Compl., ECF No. 1 ¶ 4.) The Department of Justice denied his claim on March 25, 2014, and notified Plaintiff that he had six months to commence an action in the appropriate United States District Court. (ECF No. 1 ¶ 4; ECF No. 1, Exh. A at 7.) Plaintiff commenced the instant action on September 24, 2014. (ECF No. 1) The Court issued a scheduling order on March 26, 2015, setting the deadline to designate experts pursuant to Federal Rule of Civil Procedure 26(a)(2) for January 28, 2016. (ECF No. 8.) Plaintiff has not filed or served upon Defendant designations of expert witnesses nor has Plaintiff served disclosures pursuant to Rule 26(a)(2). (SUF ¶ 6.)

         Defendants filed the instant motion on April 8, 2016, seeking an order from this court granting summary judgment in its favor because Plaintiff failed to designate expert witnesses as required to establish a professional negligence claim. (ECF No. 11.)

         II. Standard of Law

         Summary judgment is appropriate when the moving party demonstrates no genuine issue as to any material fact exists and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). Under summary judgment practice, the moving party always bears the initial responsibility of informing the district court of the basis of its motion, and identifying those portions of “the pleadings, depositions, answers to interrogatories, and admissions on file together with affidavits, if any, ” which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “[W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the pleadings, depositions, answers to interrogatories, and admissions on file.” Id. at 324 (internal quotations omitted). Indeed, summary judgment should be entered against a party who does not 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.

         If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-87 (1986); First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968). In attempting to establish the existence of this factual dispute, the opposing party may not rely upon the denials of its pleadings, but is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that the dispute exists. Fed.R.Civ.P. 56(c). The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Id. at 251-52.

         In the endeavor to establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that “the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial.” First Nat'l Bank, 391 U.S. at 288-89. Thus, the “purpose of summary judgment is to ‘pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.'” Matsushita, 475 U.S. at 587 (quoting Rule 56(e) advisory committee's note on 1963 amendments).

         In resolving the summary judgment motion, the court examines the pleadings, depositions, answers to interrogatories, and admissions on file, together with any applicable affidavits. Fed.R.Civ.P. 56(c); SEC v. Seaboard Corp., 677 F.2d 1301, 1305-06 (9th Cir. 1982). The evidence of the opposing party is to be believed, and all reasonable inferences that may be drawn from the facts pleaded before the court must be drawn in favor of the opposing party. Anderson, 477 U.S. at 255. Nevertheless, inferences are not drawn out of the air, and it is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. Richards v. Nielsen Freight Lines, 602 F.Supp. 1224, 1244-45 (E.D. Cal. 1985), aff'd, 810 F.2d 898 (9th Cir. 1987). Finally, to demonstrate a genuine issue that necessitates a jury trial, the opposing party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586. “Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.'” Id. at 587.

         III. Analysis

         Defendant seeks summary judgment on the ground that Plaintiff has not designated expert witnesses to prove the requisite standard of care and to prove a breach of the standard of care occurred. (ECF No. 11 at 3.) Plaintiff argues his complaint alleges a claim for ordinary negligence instead of professional negligence and that ordinary negligence does not require expert testimony to prove the appropriate standard of care or breach of that care. (ECF No. 12 at 3.) If the Court finds professional negligence applies then Plaintiff argues the actions of RN Ronald Burnett fell within the common knowledge exception of the requirement for expert testimony. (ECF No. 12 at 5-8.)

         For the purposes of this motion, Defendant does not dispute the diagnosis was improper or the misapplication of the freezing agent. Defendant focuses solely on the legal question of the necessity of expert testimony. Furthermore, neither party disputes that if professional negligence applies and the common knowledge exception is not applicable, then Plaintiff's failure to designate an expert makes summary judgment appropriate. Similarly, the parties acknowledge that if ordinary negligence applies then a triable issue of fact exists and summary judgment is inappropriate. ...

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