Winston v. United States of America, No. 3:2011cv00812 - Document 52 (E.D. Va. 2013)
Court Description: MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 9/9/13. Copy sent: Yes(tdai, )
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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Richmond Division MONTE DECARLOS WINSTON, Plaintiff, v. Criminal No. 3:llcv812 UNITED STATES OF AMERICA, Defendant. MEMORANDUM OPINION Monte se, DeCarlos Winston, federal prisoner proceeding pro filed this complaint pursuant to the Federal Torts Claim Act PFTCA"), 28 U.S.C. §§ 1346, pursuant to 28 U.S.C. M. a Anderson resulted Defendant in 2671-2689, § 1331. negligently injury to submitted a Winston alleges that Dr. Kathleen performed Winston's motion with jurisdiction vested to a tooth dental and dismiss or, 30, provided appropriate Roseboro2 notice. has responded. {ECF No. 37.) 1 Defendant dismissed because argues of gum. (ECF Nos. motion for summary judgment.1 procedure which (Compl. alternatively, 31.) (ECF No. 1.) a Defendant 33.) Winston The matter is ripe for judgment. that Winston's Winston's failure Complaint to comply should be with the mandatory expert certification requirement set forth in the Virginia Medical Malpractice Act, Va. Code Ann. § 8.01-20.1 (2013) ("VMMA"), and in the alternative, that Dr. Anderson was qualified to perform Winston's tooth extraction. 2 Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975). For the reasons stated below, the Court will grant the motion for summary judgment. I. OUTSTANDING MOTIONS Winston has filed two motions pursuant to Federal Rules of Civil Procedure 36 and 56(f) asking the Court to order Defendant to answer interrogatories and a request for admission 35-36 ("Rule 56(f) Motions")), contesting the ripeness ruled two on his of the discovery and case an additional because requests (ECF Nos. the Court (ECF No. 42 motion has not ("Ripeness Motion").) As where a general the discover rule, nonmoving information "summary party has that Anderson v. Liberty Lobby, is judgment not had essential [must] the to Inc., 477 U.S. be refused opportunity his to opposition." 242, 250 n.5 (1986). Rule 56(f) "permits a court to deny summary judgment or to order a continuance if the nonmovant shows through affidavits that it could not properly oppose a motion for summary judgment without a chance to conduct discovery." Serv. Co., affidavit will 80 F.3d 954, must 961 specifically turn up and how that oppose summary judgment. Evans v. Techs. Applications & (4th Cir. identify 1996). what A "Rule 56(f) evidence evidence will allow The affidavit should specif[y] legitimate needs for further discovery.'" discovery the party to 'particularly Hamilton v. Geithner, No. June 2009) 15, Corp., 44 submit the F.3d Motions. to file I:08cvlll2 an 2009 WL 1683298, (alteration in original) 234, 242 requisite Evans, (JCC), 80 (4th F.3d at 1995)). in support affidavit 961 under (E.D. Va. (quoting Nguyen v. CNA Cir. affidavit at *6 Winston of his fails Rule to 56(f) (emphasizing that "the failure Rule 56(f) is itself sufficient grounds to reject a claim that the opportunity for discovery was inadequate" 1132, 1137 Accordingly, (quoting (2d Cir. Paddington 1994) Partners v. Bouchard, 34 F.3d (internal quotation marks omitted))). Winston's Motions (ECF Nos. 35-36) will be denied. Winston's Ripeness Motion (ECF No. 42) will be denied as moot. II. WINSTON'S ALLEGATIONS In his Complaint, Winston alleges that: On 10-26-10[,] K. Anderson DHD[,] while working in the dental department of F.C.C. Petersburg (Med)[,] performed a dental procedure that she was not qualified to perform and it resulted in an injury to my tooth and gum that is still injured. The dental department at Petersburg F.C.C. (Med) violated Federal Policy by allowing K. Anderson DHD to perform a dental procedure that she was not qualified to perform, and without assistance from a qualified dental professional. She also administered numbing medication without proper credentials. (Compl. 1.) Winston requests $50,000 in monetary damages for pain and suffering. (Id. at 2.) III. SUMMARY JUDGMENT STANDARD Summary judgment must be rendered "if the movant shows that there is movant Civ. no is P. genuine entitled 56(a). dispute to The as to judgment party as any material a matter seeking of summary fact and Fed. law." judgment the R. bears the responsibility to inform the court of the basis for the motion, and to identify the parts of the record which demonstrate absence of a genuine issue of material fact. v. Catrett, 477 U.S. 317, 323 (1986). issue, a reliance summary solely interrogatories, quotation judgment on the motion and admissions on marks omitted). trial may pleadings, See Celotex Corp. "[W]here party will bear the burden of proof at the be the Id. made in answers depositions, When nonmoving on a dispositive properly file." the to at 324 (internal motion is properly supported, the nonmoving party must go beyond the pleadings and, by citing affidavits interrogatories, facts and or admissions showing that there "^depositions, on file,' is a genuine designate issue for (quoting former Fed. R. Civ. P. 56(c) and 56(e) In draw reviewing all justifiable party." United 832, 835 (4th Cir. 477 U.S. 242, Inc., summary a States inferences v. 1992) 255 judgment in Carolina (citing (1986)). to ^specific trial.'" Id. (1986)). motion, favor answers the court "must of the nonmoving Transformer Co., 978 Anderson However, v. Liberty a mere F.2d Lobby, scintilla of evidence will not preclude summary judgment. at 251 (citing Improvement Co. 442, 448 (1872)). v. Anderson, 477 U.S. Munson, 81 U.S. (14 Wall.) "MT]here is a preliminary question for the judge, not whether there is literally no evidence, but whether there is any upon which a jury could properly proceed to find a verdict for the party . . . upon whom the onus of proof is imposed.'" Id_;_ (quoting Munson, 81 U.S. at 448). Additionally, "'Rule 56 does not impose upon the district court a duty to sift through the record in search of evidence to support a party's opposition 1527, to summary 1537 (5th Cir. Inc., 953 F.2d 909, P. 56(c)(3) ¢ ¢ ¢ ¢"). pertinent 2)), and v. (quoting Skotak v. Barr, 19 F.3d Tenneco Resins, 915 & n.7 (5th Cir. 1992)); see Fed. R. Civ. In support of its Motion for Summary Judgment, here, Supp. 1994) Forsyth ("The court need consider only the cited materials the Kathleen Anderson, (Mem. judgment.'" Defendant D.M.D., Mot. Summ. J. medical records submits the affidavit of as Dr. a Dental Officer at FCC Petersburg Ex. 2 ("Anderson Aff.") from Winston's visits (ECF No. to the 32- Dental Clinic (Anderson Aff. Attachs. 1-6). As a general rule, a non-movant must respond to a motion for summary judgment with affidavits or other verified evidence. Celotex Corp., 477 U.S. at 324. Winston unsworn response and memorandum in support. responded with an (ECF Nos. 37-38.) In light of the following facts are foregoing principles All permissible inferences are drawn in a by of Winston. IV. Kathleen the the established for the purposes of the Motion for Summary Judgment. favor and submissions, M. of Dental 2010, licensed is Massachusetts Officer Service since 1996. FACTS D.M.D, Anderson, Commonwealth Commissioned UNDISPUTED in the and United (Anderson Aff. as has served States 511 1-2.) dentist as Public a Health On September 20, the BOP granted dental practice privileges to Dr. Anderson to serve as a Dental Officer at the Federal Correctional Complex in Petersburg, Virginia (Id. 11 1, 6.) ("FCC Petersburg"). Anderson's privileges included including, a but not limited to, variety of dental Dr. procedures (Id. 1 surgery and extractions. 6.) Dr. Dental Anderson treated Clinic. "presented with molar (Tooth #17) soft, tooth (Id.) Winston Dr. was decayed had (Id. 1 a on On possible complications October area in occasions 22, his 2010, lower, the Winston left, Anderson determined that and form needed procedure which of the procedure. to be soft 3rd 9.) Dr. [the] in into discussed the consent several extended non-restorable Anderson signed 8. ) which center of his tooth." "the 1 (Id. a Winston tissue extracted." with Winston, notified Winston and about (Id.; see Attach. 3, at 1.) Dr. Anderson explains that "[t]he consent formed signed by Mr. Winston mistakenly states that his (Tooth #18) was being removed, however, Tooth the tooth that was non-restorable and was Aff. SI 9; Attach. On October molar, toothache. 2010, visited 1 (Id. #17 was extracted." in fact (Anderson 3, at 1.) 26, Winston lower left 2nd molar 10; after the the Dental Attach. 4, at extraction Clinic 1.) of Winston's complaining Dr. of a Anderson examined Winston and "determined that a part of the molar's mesial root 1 10; remained Attach. common following 4, at the 2.) Dr. occurrence, complications on (Anderson Aff. 1 extraction." and explains [was] listed consent the 10; Anderson (Anderson form see Attach. as that one signed 3, at 1.) Aff. "[t]his of by Dr. the Mr. possible Anderson advised (Anderson 1 10.) Winston 2010, a Winston." Winston to take Ibuprofen and prescribed Amoxicillin. Aff. is visited complaining additional Anderson treating of antibiotics had November 5, the prescribed 2010. Dental Dental pain in and pain a (Id^ SI Officer Clinic the gum noted 5, Winston's November and even quantity see Attach. that on area, medicine, sufficient 11; again to 3, seeking though Dr. last until at 1-2.) The "extraction was healing within normal limits" and refused to provide additional medications. (Anderson Aff. SI 11; see Attach. 5, at 1-2.) On April performed by 26, an 2011, Oral "*radio-opaque SI Aff. part of his 6, at 1.) rare, jaw, "as revealed distal 12; diagnosed Winston post-operative Surgeon lesion (Anderson Winston's to Attach. having 6, a that root at radiograph Winston sockets 1.) #17.'" Oral The (Anderson Aff. a of Surgeon supernumerary tooth in Tooth #17a." had SI 12; the back see Attach Dr. Anderson explains that "[s]upernumerary teeth are and are extra teeth that are present normal permanent adult teeth. Generally, not cause any complications." (Anderson Aff. V. in addition to the supernumerary teeth do SI 12.) ANALYSIS The FTCA creates a limited waiver of the sovereign immunity of the United injuries acting States "by caused by tortious within the the scope of authorizing damages conduct their of actions federal employment, employees when a private person would be liable for such conduct under state law." v. United States, 441 F.3d 306, U.S.C. § 1346(b)(1)). courts apply the governs liable." "the Parker 28 U.S.C. manner v. 2006) Suter (citing 28 In actions brought pursuant to the FTCA, substantive law of the or omission occurred. law 310 (4th Cir. for and United state § 1346(b)(1). extent States, to which 475 F. in which the Thus, Virginia [Winston] Supp. 2d act may 594, be 596 (E.D. Va. 2007) (4th Cir. (citing Starns v. United States, 1991)) . The VMMA requires party alleging certification from the that, medical of merit applicable prior to serving the malpractice indicating standard of must that care and defendant, obtain the proximate cause of the injuries claimed." 20.I.3 923 F.2d 34, 37 an defendant the Va. expert "deviated deviation Code Ann. was If a plaintiff fails to obtain a necessary certifying "the 3 Specifically, Va. Code Ann. § 8.01-20.1 states as follows Every motion for judgment, counter claim, or third party claim in a medical malpractice action, at the time the plaintiff requests service of process upon a defendant . . . shall be deemed a certification that the plaintiff has obtained from an expert witness ... a written opinion signed by the expert witness that, based upon a reasonable understanding of the facts, the defendant . . . deviated from the applicable standard of care and the deviation was a proximate cause of the injuries claimed. Upon written request of any . . . defendant, the plaintiff shall, within 10 business days after receipt such request, provide the defendant with a certification form that affirms that the plaintiff had obtained the necessary certifying expert opinion at the time service was requested or affirms that the plaintiff did not need to obtain a certifying expert witness opinion. If the plaintiff did not obtain a necessary certifying expert opinion at the time the plaintiff requested service of process on a defendant as required under this section, the court shall impose sanctions prejudice. Id. a § 8.01- expert opinion at the time the plaintiff requested service, of a . . . and may dismiss the case with court shall impose sanctions . . . and may dismiss the case with prejudice." Id.; see (citations omitted). excused "if malpractice expert the action negligence knowledge requirement plaintiff, testimony that is F. where in asserts exception "applies only in theory alleges 596-97 of Ann. is medical alleged the where act of jury's common 8.01-20.1. § ^rare instances' a liability the range Code at certification of because Va. 2d a limited exception to faith, a within the experience." Supp. expert good unnecessary clearly lies and 475 The VMMA provides certification the Parker, This because only rarely do the alleged acts of medical negligence fall within the range of a jury's Parker, v. or factfinder's 475 F. Supp. Nichols, 441 Sponsors of (4th Cir. common 2d at 597 S.E.2d 3 experience." (quoting Beverly Enter.-Va., (Va. October Winston with Supp. 11, a written the expert Summ. Defendant Research and 1994)); 2012, Study, Defendant certification v. Unnamed 254, 1, with the certification undisputed that certification VMMA. of App'x formally at requirement Ex. the F. Keitz 255-56 requested certification affirming Winston's J. required by 510 see Inc. 2013) . On Cocaine 1, knowledge See Winston merit 1). Va. Winston 10 form Code failed prior of to the within Ann. § to provide serving compliance VMMA. failed from to ten (Mem. provide days 8.01-20.1. an process It as is expert on the Defendant. must where Thus, establish the to "that alleged this common Supp. 597 Winston fails of Anderson bases to However, undisputed possessed the Winston's tooth professional extraction matters v. proper the Winston's 437 F. requirement. proper facts Winston instances' fall within Parker, 441 claim medical establish and extraction. extent that 475 S.E.2d at on a F. 3). and 2d fails to to Accordingly, that SISI Dr. the reference to Supp. 2d at 597 563 fall the (E.D. within VMMA's Winston's 11 and 1-2.) Anderson to perform 1-2, 6.) Anderson's tooth, the treatment, post-extraction 557, Dr. Aff. extract only by 475 F. Supp. exception the to theory (Compl. challenges Winston the credentials qualifications (Anderson judgment resolved Parker, claim knowledge negligence negligence licensure medical "%can be Cho, ^are perform the tooth extraction. procedure, testimony.'" those and experience." his lacked qualifications to Complaint, to do so. Dr. Moreover, his of one medical knowledge Winston the is of (quoting Beverly Enter.-Va., First, that case acts factfinder's 2d at avoid dismissal such expert opinion (quoting Callahan Va. 2006)). Thus, the limited common expert failure certification to obtain the requisite expert certificate of merit is fatal to his claim. Id.4 VI. CONCLUSION Based on the foregoing, the Defendant's Motion for Summary Judgment (ECF No. 31) will be granted. dismissed with prejudice. Even assuming Winston's claim will be The action will be dismissed. inapplicability of the VMMA's expert certification requirement, Defendant remains entitled to summary judgment. Under Virginia law, "a plaintiff must establish not only that a defendant violated the applicable standard of care, and therefore was negligent, the plaintiff must also sustain the burden of showing that the negligent acts constituted a proximate cause of the injury or death" Sanchez-Angeles v. United States, No. 7:07-cv-00596, 2008 WL 2704309, at *6 (W.D. Va. July 10, 2008) (quoting Bryan v. Burt, 486. S.E.2d 536, 539- 40 (Va. 1997)). Additionally, "'expert testimony is ordinarily necessary to establish the appropriate establish a deviation from the standard, standard of care, to and to establish that such deviation was the proximate cause of the claimed damages." Id. (quoting Raines v. Lutz, 341 S.E.2d 194, 196 (Va. 1986)). The exception, again, "exist[s] only in "those rare cases in which a health care provider's act or omission is clearly negligent within the common knowledge of laymen.'" Id. (quoting Raines, 341 S.E.2d at 196 n.2). As previously discussed, Winston has failed to provide necessary expert testimony. Moreover, Winston questions the professional medical judgment of Dr. Anderson, a matter that knowledge of a factfinder. Sanchez-Angeles, 2008 WL lacks fails to fall within the common See Parker, 475 F. Supp. 2d at 598; 2704309, at *6. Without expert testimony, Winston negligence injuries. or establish proximate causation of his See Parker, 475 F. Supp. 2d at 599. Thus, the ability to adduce judgment is appropriately granted for the Defendant. 12 evidence of alleged summary The Clerk of the Court is directed to send a copy of this Memorandum Opinion to Winston and counsel for the United States. An appropriate Order shall issue. /s/ Robert E. Payne £/-/> Senior United States District Judge Richmond, Virginia Date: ^v^^ 13
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