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, )

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