Ramsey v. Gamber et al

Filing 107

OPINION AND ORDER that plaintiff Austin Chaz Ramsey's 101 MOTION to Alter Judgment is denied. Signed by Honorable Judge Myron H. Thompson on 8/12/2011. (Attachments: # 1 Civil Appeals Checklist)(cc, )

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IN THE DISTRICT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF ALABAMA, EASTERN DIVISION AUSTIN CHAZ RAMSEY, ) ) ) ) ) ) ) ) ) Plaintiff, v. ARNOLD GAMBER, Defendant. CIVIL ACTION NO. 3:09cv919-MHT (WO) OPINION AND ORDER In this lawsuit, plaintiff Austin Chaz Ramsey, a former football player at Auburn University, charged that defendant Arnold Gamber, a former athletic trainer at Auburn, failed to supervise his rehabilitation properly, in violation of state law. This lawsuit is again before the court, this time on Ramsey’s motion to alter, amend, or vacate summary judgment, which was entered against him on February 7, 2011, based on insufficiency of evidence to support his claims. Ramsey v. Gamber, 2011 WL 486139, at *6 (M.D. Ala. Feb. 7, 2011) (Thompson, J.). motion will be denied. The I. BACKGROUND This court granted summary judgment in favor of Gamber because Ramsey failed to produce any evidence of negligent or wanton conduct by Gamber.* After Ramsey sustained an injury during weight training at Auburn, Gamber collaborated rehabilitation plan. with doctors According to to design Ramsey, a Gamber improperly ordered him to perform weighted exercises before it was safe for him to do so, in violation of doctors’ instructions. Ramsey could offer no direct evidence that Gamber had ordered any recommendations. exercises exceeding Instead, Ramsey the relied on doctors’ his own testimony that an unidentified weight-room assistant had told him to perform box-squat exercises while holding * Ramsey also asserted a claim of “interference with the physician-patient relationship.” The court found that there was neither precedent supporting the existence of this tort nor evidence to support the alleged claim. Ramsey has apparently waived this claim as he did not renew any arguments related to the putative tort in his motion to alter judgment. 2 free weights. Ramsey testified that the assistant had told him that the weighted squats were on a list used for Ramsey’s physical therapy. Ramsey argued that the assistant’s statement provided circumstantial evidence that Gamber had ordered the use of weights in violation of the doctors’ express instructions. Ramsey also contended that the absence of a written rehabilitation plan produced in discovery suggested that Gamber had destroyed the plan because it revealed his misconduct. On February, 7, 2011, the court ruled that Ramsey had not offered evidence sufficient to overcome Gamber’s motion for summary judgment. Ramsey’s reliance on the statement of the weight-room assistant was misplaced because the statement was inadmissible hearsay. Furthermore, Ramsey offered no evidence that Gamber had lost or destroyed the written rehabilitation plan in bad faith. Without evidence of bad faith, the court could not presume that the documents contained information damaging to Gamber. Since 3 Ramsey offered no other evidence of misconduct by Gamber, summary judgment was appropriate against Ramsey. In support of his motion to alter judgment, Ramsey has offered the deposition of the previously unidentified weight-room assistant, Paul Creighton. This deposition was taken by Gamber on December 30, 2010, after the close of discovery and after the summary-judgment motion had been fully briefed. Creighton’s deposition directly contradicts Ramsey’s own testimony. Creighton testified that he monitored Ramsey’s exercises on June 2, 2008, the day he was allegedly injured. weights while He stated that Ramsey did not use performing instructed to do so. box squats, nor was he However, Creighton testified that Ramsey performed other weighted exercises--leg curls and arm curls on an incline bench. These weighted exercises were part of a list that the weight-room supervisor, Coach Yoxall, drafted for Ramsey at the beginning of the day. 4 II. MOTION-TO-ALTER-JUDGMENT STANDARD “The decision whether to alter or amend a judgment pursuant to Rule 59(e) [of the Federal Rules of Civil Procedure] is ‘committed to the sound discretion of the district judge.’” Mincey v. Head, 206 F.3d 1106, 1137 (11th Cir. 2000) (quoting American Home Assurance Co. v. Glenn Estess & Associates, Inc., 763 F.2d 1237, 1238 (11th Cir. 1985)). However, “The only grounds for granting [a Rule 59] motion are newly-discovered evidence or manifest errors of law or fact.” F.3d 1335, 1343 (11th Cir. 2007). Rule 59(e) motion to Arthur v. King, 500 A party “cannot use a relitigate old matters, raise argument or present evidence that could have been raised prior to the entry of judgment.” Michael Linet, Inc. v. Village of Wellington, Fla., 408 F.3d 757, 763 (11th Cir. 2005). 5 III. DISCUSSION Ramsey seeks to offer Creighton’s deposition as new evidence that he was, in fact, required to perform weighted exercises contrary to his doctors’ instructions. Ramsey raises no new legal arguments nor does he address any putative errors judgment order. of law in the court’s summary- He seeks only to bring the undisclosed facts in Creighton’s deposition to the court’s attention in advance of a potential appeal. See San Francisco Residence Club, Inc. v. 7027 Old Madison Pike, L.L.C., 583 F.3d 750, 755 (11th Cir. 2009) (“Before [an appellate] court will consider alleged error at the trial level, the trial judge must first have the opportunity to pass upon the issue.”). Ramsey’s motion to alter is due to be denied for three reasons. First, he was on notice that the court could not consider a deposition not admitted in evidence at summary directly judgment. contradicts Second, Ramsey’s 6 Creighton’s account of testimony how he was injured. Third, even if the court considered the deposition, there is still insufficient evidence to hold Gamber liable for Ramsey’s injury. Ramsey acknowledges that “a Rule 59(e) motion [cannot be used] to ... present evidence that could have been raised prior to the entry of judgment.” Michael Linet, Inc. v. Village of Wellington, Fla., 408 F.3d 757, 763, (11th Cir. 1997). Instead, Ramsey contends that he was initially unable to take Creighton’s deposition by the discovery deadline because Creighton had moved to the University of Colorado and was beyond subpoena power. Ramsey further asserts that he did notify the court during a pretrial conference held on January 14, 2011, that Creighton’s available. discovered deposition had recently become A failure to “even whisper” about newly facts consideration of before those entry facts of on judgment a motion precludes to alter, O’Neal v. Kennamer, 958 F.2d 1044, 1047 (11th Cir. 1992); but Ramsey argues that he did effectively “whisper” about 7 the new deposition by raising the issue during the pretrial conference. Ramsey’s argument fails because the court put the parties on notice that it was considering only that evidence before the court and briefed by the parties. At the pretrial conference, the court explicitly stated in reference to Creighton’s deposition “If I don’t have it before me, I can’t consider it.” Trans. 15:7-8 (Doc. No. 83). Ramsey therefore knew that the summary-judgment motion would be decided on the record submitted by the parties at the close of discovery. If he believed Creighton’s deposition was important to his claim, Ramsey had over a month before the entry of summary judgment to ask the court to consider the newly taken deposition. Ramsey’s decision not to amend his filings suggests that he withheld the deposition for strategic reasons. Therefore, the court denies the motion to alter on the basis of newly available evidence; the evidence did not become “newly available” after entry of summary judgment. 8 Second, Creighton’s even if the deposition, court the were testimony to consider does not help Ramsey because it refutes his account of the injury. Indeed, it is understandable that Ramsey might make a strategic decision to withhold Creighton’s deposition from the court. solely on his At summary judgment, Ramsey relied own testimony that he was injured immediately after being ordered to do weighted squats. Far from supporting his claim, Creighton’s deposition provides eyewitness testimony that Ramsey never performed the exercises that allegedly caused his injury, nor was he ordered to do so. At summary judgment, the court must view the admissible evidence in the light most favorable to the non-moving party and draw all reasonable inferences in favor of that party. Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). But in this case, it is unclear how Ramsey proposes that the court view the contradictory testimony. 9 Either Ramsey or Creighton is lying or mistaken in their description of Ramsey’s exercise regimen on June 2, 2008. Now, Ramsey apparently asks the court to adopt Creighton’s version over Ramsey’s own account. Even if the court were to do so, fail Ramsey’s claim would because there is no evidence from Creighton’s deposition that the weight-room exercises caused Ramsey’s injury. Contrary to Ramsey’s account, Creighton testified that Ramsey never complained of any pain or stopped exercising; he completed his entire workout without incident. Ramsey return to the weight Creighton says he saw room again during the following week. Finally, even if the court presumed that the leg and arm curls on the incline bench caused Ramsey’s injury, his claims would fail because there is no evidence of misconduct by Gamber. on the incline Notably, the leg and arm exercises bench appear to conform to the rehabilitation plan Gamber created with Ramsey’s doctors. The plan had a set progression, 10 undisputed by the parties: Step 1 – running and jogging only, for two to three days; Step 2 - running combined with exercises exclusively involving Ramsey’s own body weight; Step 3 seated upper-body weight lifting and leg presses. The progression would halt if Ramsey reported pain at any time. before Ramsey had previously completed Step 1 a few days June 2, 2008. According to Creighton, Ramsey completed Step 2 earlier in the day before he began the seated arm and leg exercises. Ramsey’s seated leg and arm exercises on the incline bench appear to conform with the third step of the rehabilitation plan. There is simply no evidence, either from Creighton’s testimony or from the record at the close of discovery, that Gamber ever diverted from the rehabilitation plan developed with Ramsey’s doctors. responsible exercises. for drafting Yoxall, not Gamber, was athlete’s daily regimen of All witnesses have testified that Gamber did not supervise the weight room or weight-room assistants. Creighton’s testimony confirms that the “list” of daily 11 exercises Creighton used on June 2, 2008, was not the same document as the “master” rehabilitation plan created by Gamber and Ramsey’s doctors; the list was drawn up by Yoxall on a sheet of yellow paper discarded at the end of the day. Even if it was negligent to permit Ramsey to begin Step 3 on the same day as Step 2, there is simply no evidence exercise that regimen; Gamber that ever was authorized Yoxall’s duty. the daily Instead, Creighton’s testimony tends to confirm that Gamber’s plan complied with the rehabilitation sequence approved by Ramsey’s doctors. The court sympathizes with Ramsey’s distress over the injury that cut short his athletic career. regrettable that Auburn University It is deeply terminated his football scholarship because of an injury he had little ability to prevent. Nevertheless, it is elementary to the law of negligence that the plaintiff must demonstrate how the defendant’s misconduct caused his injury. 12 With or without Creighton’s deposition testimony, Ramsey can point to no evidence that would sustain his claims. * * * For the foregoing reasons, it is ORDERED that plaintiff Austin Chaz Ramsey’s motion to alter judgment (Doc. No. 101) is denied. DONE, this the 12th day of August, 2011. _____________________________ /s/ Myron H. Thompson UNITED STATES DISTRICT JUDGE

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