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Dutton v. United States

United States District Court, S.D. Georgia, Statesboro Division

November 25, 2014

EDNA R. DUTTON, as Administrator of the Estate of Bartow C. Dutton, Plaintiff,


B. AVANT EDENFIELD, District Judge.


Before the Court are the United States of America's Motion to Exclude Expert Testimony and for Summary Judgment, ECF No. 50, and Edna R. Dutton's Motion to Allow Additional Expert, ECF No. 52.

Edna R. Dutton ("Plaintiff"), as administrator of the estate of her deceased husband, Bartow C. Dutton ("Mr. Dutton"), seeks damages from the United States of America ("Government") under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671-80, alleging that the negligence of the doctors and staff of the Charlie Norwood Veterans Administration Medical Center ("VAMC") caused Mr. Dutton "serious personal injuries which caused permanent impairment, loss of his entire right leg, and disfigurement." ECF No. 1 at 10. The Government argues that Plaintiff's proffered expert is not competent to testify under O.C.G.A. § 24-7-702(c) and that, therefore, Plaintiff cannot make out a claim of medical malpractice under Georgia law, thus entitling the Government to summary judgment. ECF No. 50 at 19.

For the reasons set forth below, the Court agrees with the Government and GRANTS the Government's Motion to Exclude Expert Testimony and for Summary Judgment and DENIES Plaintiff's Motion to Allow Additional Expert.


In the early morning hours of May 24, 2010, Mr. Dutton was admitted to VAMC after complaining of abdominal pain and several episodes of vomiting and loose stool. ECF Nos. 50-1 at 4; 50-2 at 869; 56-1 at 5. On May 28, 2010, a CTA of Mr. Dutton's abdomen revealed "[f]indings concerning for mesenteric ischemia, " a potentially life-threatening condition. ECF Nos. 50-1 at 4; 50-3 at 662; 50-9 at 33-34; 56-1 at 5. Subsequent colonoscopy and endoscopy results were consistent with the CTA findings. ECF Nos. 50-1 at 5; 50-2 at 701, 706-07; 56-1 at 5-6.

After Mr. Dutton continued to experience symptoms overnight on June 1-2, 2010, interventional radiologist Dr. David Riggans unsuccessfully attempted to stent Mr. Dutton's superior mesenteric artery. ECF Nos. 50-1 at 5; 50-2 at 703; 50-3 at 1549-56; 56-1 at 6. On the night of June 2, 2010, after Dr. Riggans's unsuccessful attempt to treat Mr. Dutton's mesenteric ischemia, Mr. Dutton began to feel as though he was losing blood flow to his right leg. See ECF 50-1 at 5; 50-2 at 683; 56-1 at 6. Nurses reported that Mr. Dutton's leg was cool to the touch, and Mr. Dutton reported loss of sensation and a burning feeling in his right leg. ECF No. 50-1 at 5; 50-2 at 683-84; 56-1 at 6-7.

Vascular surgery was then called to evaluate Mr. Dutton's condition. ECF Nos. 50-1 at 6; 56-1 at 7. The assessment was that Mr. Dutton had developed a blood clot in a bypass graft in his right leg. See ECF 50-2 at 679. However, in light of Mr. Dutton's active issues with mesenteric ischemia, the vascular surgery team, led by Dr. Manuel F. Ramirez, elected to treat Mr. Dutton's clotted bypass graft conservatively and instructed him to hang his leg off the side of the bed. Id. at 679. The medical staff at VAMC continued to monitor Mr. Dutton's leg overnight. ECF Nos. 50-1 at 6; 56-1 at 7.

On the morning of June 3, 2010, Mr. Dutton's right leg remained pulseless and cold to the touch. ECF Nos. 50-1 at 6; 50-2 at 676; 56-1 at 7-8. At that point, the "general consensus was to proceed with a repeat aortogram with the intent to revascularize the celiac trunk and proceed with lytic therapy of [Mr. Dutton's] thrombosed [right leg]." ECF Nos. 50-1 at 6-7; 50-2 at 669. Then, after placement of a catheter for lytic infusion, Dr. Ramirez transferred Mr. Dutton to the Medical College of Georgia ("MCG") to continue lytic therapy under ICU supervision. ECF Nos. 50-1 at 7; 50-2 at 662; 56-1 at 8. After anticoagulation therapy was unsuccessful, physicians at MCG made the decision to amputate Mr. Dutton's right leg "[i]n light of [Mr. Dutton's] mesenteric ischemia and risk of having acute dead bowel presentation masked by the right lower extremity problems." ECF 50-1 at 7; 50-6 at 3; 56-1 at 8. This amputation occurred on June 6, 2010. ECF Nos. 50-1 at 7; 56-1 at 8.

On May 22, 2013, Plaintiff and Mr. Dutton filed the complaint in this case, alleging that that the negligence of VAMC physicians and staff in failing to treat the emergent ischemia in Mr. Dutton's right leg caused the eventual amputation of that leg. ECF No. 1 at 9-10. On August 19, 2013, Mr. Dutton died, see ECF No. 17, and Plaintiff is now party to the case individually and as administrator of Mr. Dutton's estate. See ECF No. 31.

The Court previously found that Dr. Riggans was an independent contractor and, therefore, Plaintiff may not recover from the Government for his actions. ECF No. 49. Accordingly, the remaining basis for Plaintiff's medical malpractice claim is VAMC's delay in treating Mr. Dutton's ischemic right leg on June 2, 2010, which Plaintiff believes was unreasonable. See ECF Nos. 1 at 9-10; ECF No. 45 at 8; 50-1 at 2; 56-1 at 3.


"The court shall grant summary judgment if the movant shows that there is 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 ruling on summary judgment, the Court views the facts and inferences from the record in the light most favorable to the nonmoving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Reese v. Herbert, 527 F.3d 1253, 1271 (11th Cir. 2008). Courts, moreover, may consider all materials in the record, not just those cited by the parties. Fed.R.Civ.P. 56(c)(3).

The moving party "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact." Reese, 527 F.3d at 1268 (internal quotation marks omitted) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)).

The nonmoving party then "may not rest upon the mere allegations or denials of [its] pleading[s], but... must set forth specific facts showing that there is a genuine issue for trial." Young v. City of Palm Bay, Fla., 358 F.3d 859, 860 (11th Cir. 2004). "A genuine issue of material fact exists if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Owen v. I.C. Sys., Inc., 629 F.3d 1263, 1270 (11th Cir. 2011) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A fact is material only if it might affect the outcome of the suit under governing law. See Anderson, 477 U.S. at 248.


"Liability in an FTCA action is determined in accordance with the law of the place where the government's act or omission occurred, which in this case is [Georgia]." See Stevens v. Battelle Mem. Inst., 488 F.3d 896, 899 n.3 (11th Cir. 2007). Thus, the FTCA requires that the whole law of Georgia be applied to Plaintiff's medical malpractice claim. See Gonzalez-Jiminez De Ruiz v. United States, 378 F.3d 1229, 1230 n.1 (11th Cir. 2004).

In medical malpractice cases under Georgia law, plaintiffs must prove: "(1) the duty inherent in the doctor-patient relationship; (2) the breach of that duty by failing to exercise the requisite degree of skill and care; and (3) that this failure be the proximate cause of the injury sustained." Zwiren v. Thompson, 578 S.E.2d 862, 864 (Ga. 2003) (quotation omitted). In order to prove "a violation of the applicable medical standard of care [and] also that the purported violation [of] or deviation from the proper standard of care is the proximate cause of the injury sustained, ' Plaintiff must provide expert testimony. Porter v. Guill, 681 S.E.2d 230, 235 (Ga.Ct.App. 2009) (quoting MCG Health, Inc. v. Barton, 647 S.E.2d 81, 86 (Ga.Ct.App. 2009)).

Thus, to withstand the Government's motion for summary judgment, Plaintiff must produce expert medical testimony that establishes, to a "reasonable degree of medical certainty, " that the Government's "purported violation or deviation is the proximate cause of Mr. Dutton's injuries. See Beasley v. Northside Hosp., Inc., 658 S.E.2d 233, 236-37 (Ga.Ct.App. 2008). In the absence of such testimony, there is no issue of material fact and Plaintiff cannot weather a motion for summary judgment. Id.

A. Expert Testimony, Federal Rules of Evidence, and O.C.G.A. § 24-7-702

Where, as here, state law governs the substantive issues of the case, federal law still governs procedural matters in federal court. McDowell v. Brown, 392 F.3d 1283, 1294 (11th Cir. 2004) (citing Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938)). "Rules of procedure encompass rules of evidence, and therefore, the Federal Rules of Evidence, not state evidentiary laws, apply." Id. In general, "the admissibility of expert testimony is a matter of federal, rather than state procedure." See id. at 1294-95.

Plaintiff argues that, because this case arises under federal law, O.C.G.A. § 24-7-702, governing qualifications of experts in Georgia civil proceedings, does not apply and the Court need only apply Federal Rules of Evidence in determining the admissibility of expert testimony. See ECF No. 56 at 3. But in McDowell v. Brown , the Eleventh Circuit held that Georgia's expert competency rules apply where a federal court exercises supplemental jurisdiction over a state law claim. McDowell, 392 F.3d at 1294-95. There, the Eleventh Circuit found that Georgia's expert competency rule is really "substantive in nature, and transcend[s] the substance-procedure boundary creating a potential Erie conflict." Id. at 1295. Relying on the Sixth Circuit's decision in Legg v. Chopra, 286 F.3d 286 (6th Cir. 2002), the Eleventh Circuit concluded that state witness competency rules are often intimately intertwined with a state substantive rule [and that] [t]his is especially true with medical malpractice statutes, because expert testimony is usually required to establish the standard of care.'" Id (quoting Legg, 286 F.3d at 290). Therefore, a determination of expert competency under Georgia law was required as a prerequisite to expert screening under Federal Rule of Evidence 702. Id.

Though the Eleventh Circuit has not considered whether the same is true in cases arising under the FTCA, the Court finds that the rationale in McDowell applies equally to FTCA cases. In doing so, the Court concludes that this finding comports with Federal Rule of Evidence 601's mandate that "in a civil case, state law governs the witness's competency regarding a claim or defense for which state law applies the rule of decision, " while not offending Federal Rule of Evidence 702's governance of the admissibility of expert testimony. See 27 Charles Alan Wright & Victor James Gold, Federal Practice & Procedure § 6003, at 32 (2d ed. 2007) ("[O]ne key to establishing the scope of Rule 601 is to distinguish between competency and admissibility.... [A] witness might be able to offer testimony that is admissible, but that witness still is prevented from taking the stand if [she is not competent to testify]."); see also Liesback v. United States, 731 F.3d 850, 855-57 & n.4 (9th Cir. 2013) (citing McDowell, 392 F.3d at 1294-96) (applying state statute governing expert competency in medical malpractice cases in an FTCA case).

Therefore, the Court finds that, through Federal Rule of Evidence 601, O.C.G.A. § 24-7-702 applies in FTCA actions where Georgia's ...

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