Unpublished Disposition, 885 F.2d 875 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 885 F.2d 875 (9th Cir. 1989)

Vaughn BALL, Plaintiff-Appellant,v.UNITED STATES of America, Defendant-Appellee.

No. 88-15159.

United States Court of Appeals, Ninth Circuit.

Submitted June 28, 1989.* Decided Sept. 12, 1989.

Before WALLACE, POOLE, and CYNTHIA HOLCOMB HALL, Circuit Judges.


MEMORANDUM

Ball appeals from summary judgment entered in favor of the United States in his negligence action. The district court had jurisdiction pursuant to the Federal Tort Claims Act, 29 U.S.C. §§ 2671-2680, 1346, 2401 and 2402. We have jurisdiction over this timely appeal pursuant to 28 U.S.C. §§ 1291 and 1294. We affirm.

An indispensable element of Ball's claim is that his fall at the Veterans Administration Medical Center was a proximate cause of his claimed injury. Frantz v. San Luis Medical Center, 81 Cal. App. 3d 34, 39, 146 Cal. Rptr. 146, 150 (1978). When this issue was raised by the government by a motion for summary judgment, it was incumbent upon Ball to come forward with evidence to demonstrate there was a disputed material fact as to the proximate cause of his injury. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).

The deposition of Dr. Nagel was insufficient to prevent summary judgment. He could not give an opinion whether the difficulty Ball was experiencing was a result of an unsuccessful surgery by Dr. Jones or a post-operative fall. Summary judgment was properly entered.

Ball moved for reconsideration pursuant to Fed. R. Civ. P. 59 based upon a subsequent deposition of Dr. Jones. But he too could not testify to a reasonable degree of medical certainty whether the fall was the cause of Ball's complaints. For the reasons stated by the district judge, we conclude he did not err in denying the motion.

AFFIRMED.

Judge Poole concurs in the result.

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a) and Ninth Circuit Rule 34-4