Port v. USA, No. 2:2017cv00280 - Document 97 (E.D. Wash. 2019)
Court Description: ORDER GRANTING DEFENDANTS MOTION FOR SUMMARY JUDGMENT; DENYING PLAINTIFFS MOTION FOR RECONSIDERATION. Defendant United States Motion for Summary Judgment ECF No. 78 is GRANTED. Plaintiff Joanne Ports Motion for Reconsideration ECF No. 93 is DENIED. The file is CLOSED. Signed by Chief Judge Thomas O. Rice. (LLH, Courtroom Deputy)
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tions of Defendant’s expert witness. See ECF No. 94-1. 19 However, as discussed more below, the supplemental declaration suffers from the 20 exact issues raised by the Court in excluding the first declaration: the expert ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT; DENYING PLAINTIFF’S MOTION FOR RECONSIDERATION ~ 3 1 opinion delves into the merits of the VA’s decision not to place Mr. Port on the 2 transplant list based on his BMI and otherwise proffers conclusions without any 3 substantive explanation. Plaintiff has effectively been given a second bite of the 4 apple and still comes up short. 5 It is worth mentioning that, in the Motion for Reconsideration, Plaintiff 6 opines that her claims may have been misconstrued. Plaintiff states: “Plaintiff 7 maintains again that expert Dr. Sonett’s opinion of Mr. Port not being timely 8 placed on a transplant list has nothing to do with a benefits determination.” ECF 9 No. 93 at 7. Plaintiff is correct that the issue of timeliness in detecting Mr. Port’s 10 condition (at issue here) is separate from the issue of whether the VA properly 11 excluded Mr. Port from the transplant list (an issue not subject to review). 12 However, in his declaration, Dr. Sonnet did not directly opine that the VA should 13 have detected Mr. Port’s pulmonary fibrosis at an earlier time, but rather spends 14 most of the time arguing the merits of a decision to exclude Mr. Port from the list 15 based on a BMI above 30, which clearly goes to whether the VA properly excluded 16 Mr. Port from the transplant list. See ECF No. 71-2; see also ECF No. 93 at 7 17 (arguing the national “standard of care for putting patients on the transplant list 18 does not exclude them if their BMI is over 30”). 19 Plaintiff’s Motion for Reconsideration (ECF No. 93) is therefore denied. 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT; DENYING PLAINTIFF’S MOTION FOR RECONSIDERATION ~ 4 1 2 MOTION FOR SUMMARY JUDGMENT A. Standard of Review 3 A movant is entitled to summary judgment if “there is no genuine dispute as 4 to any material fact and that the movant is entitled to judgment as a matter of law.” 5 Fed. R. Civ. P. 56(a). A fact is “material” if it might affect the outcome of the suit 6 under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 7 (1986). An issue is “genuine” where the evidence is such that a reasonable jury 8 could find in favor of the non-moving party. Id. The moving party bears the 9 “burden of establishing the nonexistence of a ‘genuine issue.’” Celotex Corp. v. 10 Catrett, 477 U.S. 317, 330 (1986). “This burden has two distinct components: an 11 initial burden of production, which shifts to the nonmoving party if satisfied by the 12 moving party; and an ultimate burden of persuasion, which always remains on the 13 moving party.” Id. 14 Per Rule 56(c), the parties must support assertions by: “citing to particular 15 parts of materials in the record” or “showing that the materials cited do not 16 establish the absence or presence of a genuine dispute, or that an adverse party 17 cannot produce admissible evidence to support the fact.” Only admissible 18 evidence may be considered. Orr v. Bank of America, NT & SA, 285 F.3d 764 (9th 19 Cir. 2002). The nonmoving party may not defeat a properly supported motion with 20 mere allegations or denials in the pleadings. Liberty Lobby, 477 U.S. at 248. The ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT; DENYING PLAINTIFF’S MOTION FOR RECONSIDERATION ~ 5 1 “evidence of the non-movant is to be believed, and all justifiable inferences are to 2 be drawn in [the non-movant’s] favor.” Id. at 255. However, the “mere existence 3 of a scintilla of evidence” will not defeat summary judgment. Id. at 252. 4 B. Discussion 5 Defendant United States of America requests the Court enter summary 6 judgment against Plaintiff Joanna Port for all claims. ECF No. 78. Specifically, 7 Defendant argues Plaintiff’s “corporate negligence” against the United States is not 8 cognizable under the FTCA, Plaintiff’s informed consent and medical malpractice 9 claim fails for lack of evidence, and Plaintiff’s negligence claim fails as being 10 duplicative of the medical negligence claim. ECF No. 78 at 2-6; see ECF No. 6 at 11 4-5, ¶¶ 4.2-4.5. Plaintiff concedes dismissal of the informed consent and corporate 12 negligence claims, but argues “[t]here are material facts in dispute regarding the 13 medical care and treatment provided to Mr. Port by medical provider of the VA, in 14 particular in Spokane.” ECF No. 88 at 1. In attempting to support this position, 15 Plaintiff simply provides a detailed statement of facts, ECF No. 88 at 2-8, a brief 16 statement of the law (conceding the necessity of expert testimony), ECF No. 88 at 17 8-9, and a verbatim recitation of the supplemental report from Dr. Sonnet, ECF No. 18 88 at 10-12. 19 The Court finds that Defendant is entitled to summary judgment. The 20 Parties agree, and the Court finds, that expert testimony is necessary for Plaintiff to ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT; DENYING PLAINTIFF’S MOTION FOR RECONSIDERATION ~ 6 1 proceed with the claim for medical negligence (and the duplicative negligence 2 claim). Plaintiff submitted a declaration and a supplemental response from Dr. 3 Joshua Sonnet. However, the Court excluded the declaration, as discussed above, 4 because it discussed irrelevant matters (the merits of the VA’s decision to not put 5 Mr. Port on the transplant list based on his weight) and otherwise failed to provide 6 a reasoned explanation for the proffered opinions in accordance with Rule 702 and 7 Daubert. The supplemental response does not fare any better, so Plaintiff does not 8 present any admissible expert opinion supporting her claim. 9 In the supplemental response, Dr. Sonnet (1) focuses on the merits of the 10 VA’s decision to not place Mr. Port on the transplant list based on his BMI 11 (arguing other institutions “could have accepted Mr. Port as candidate”) and (2) 12 attempts to support his previous opinion as to Mr. Port’s life expectancy with a 13 transplant, ECF No. 89-3, but the first contention is not at issue1 and the second 14 contention is only relevant if Plaintiff establishes Mr. Port should have been placed 15 on a transplant list at an earlier time (which Plaintiff fails to show). Rather, there 16 17 1 18 transplant was properly denied,” ECF No. 44 at 2, so the question whether the VA 19 should have put Mr. Port on the transplant list despite his high BMI is not at issue. Plaintiff conceded the negligence claim is “premised on the fact that a 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT; DENYING PLAINTIFF’S MOTION FOR RECONSIDERATION ~ 7 1 are two critical issues underlying Plaintiff’s claim of negligence—namely, (1) 2 whether the VA negligently failed to timely detect and treat Mr. Port’s pulmonary 3 fibrosis (thereby missing the chance to be placed on the transplant list while he was 4 still eligible) and (2) whether the VA was negligent in intubating Mr. Port. See 5 ECF Nos. 7 at 6, ¶ 4.6; 89-3. Dr. Sonnet almost hits the mark when he opined that 6 “Mr. Port should have been advised in July of 2015 regarding treatment for his IPF 7 including lung transplant and the requirement associated therewith[,]” ECF No. 89- 8 3 at 3, because it appears to support the contention that Mr. Port should have been 9 considered for a lung transplant at an earlier time. However, Dr. Sonnet concedes 10 Mr. Port had a BMI over 30 on July 7, 2015 – which would make him not eligible 11 for a transplant according to the VA – but implicitly argues Mr. Port would have 12 lost weight had he been encouraged to do so at this time given the successful 13 weight loss of others in his situation. See ECF No. 89-3 at 3-6. The opinion that 14 Mr. Port would have lost weight had he been encouraged to do so in July 2015 is 15 speculative, at best, and is contradicted by Mr. Port’s express unwillingness to join 16 a weight loss program when later prompted by medical professionals. As such, 17 even if considering the declarations from Dr. Sonnet, Plaintiff has not brought 18 forward any evidence supporting the two critical issues at hand. 19 Without medical testimony as to Plaintiff’s claim of negligence (failing to 20 timely detect Mr. Port’s pulmonary fibrosis and negligently intubating Mr. Port), ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT; DENYING PLAINTIFF’S MOTION FOR RECONSIDERATION ~ 8 1 Plaintiff’s claims fail and summary judgment is proper. 2 ACCORDINGLY, IT IS HEREBY ORDERED: 3 4 5 6 7 8 9 1. Defendant United States’ Motion for Summary Judgment ECF No. 78) is GRANTED. 2. Plaintiff Joanne Port’s Motion for Reconsideration (ECF No. 93) is DENIED. The District Court Executive is directed to enter this Order, enter judgment for Defendant, furnish copies to counsel, and close the file. DATED April 15, 2019. 10 11 THOMAS O. RICE Chief United States District Judge 12 13 14 15 16 17 18 19 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT; DENYING PLAINTIFF’S MOTION FOR RECONSIDERATION ~ 9
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