Ramsey v. Gamber et al
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,
CIVIL ACTION NO.
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.
This court granted summary judgment in favor of
Gamber because Ramsey failed to produce any evidence of
negligent or wanton conduct by Gamber.*
sustained an injury during weight training at Auburn,
improperly ordered him to perform weighted exercises
before it was safe for him to do so, in violation of
Ramsey could offer no direct evidence that Gamber had
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.”
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.
Ramsey testified that the assistant had
told him that the weighted squats were on a list used for
assistant’s statement provided circumstantial evidence
that Gamber had ordered the use of weights in violation
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
Furthermore, Ramsey offered no evidence that Gamber had
lost or destroyed the written rehabilitation plan in bad
Without evidence of bad faith, the court could
not presume that the documents contained information
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.
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
Creighton testified that he monitored
Ramsey’s exercises on June 2, 2008, the day he was
He stated that Ramsey did not use
instructed to do so.
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
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
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
granting [a Rule 59] motion are newly-discovered evidence
or manifest errors of law or fact.”
F.3d 1335, 1343 (11th Cir. 2007).
Arthur v. King, 500
A party “cannot use a
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.
Ramsey seeks to offer Creighton’s deposition as new
weighted exercises contrary to his doctors’ instructions.
Ramsey raises no new legal arguments nor does he address
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.,
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
First, he was on notice that the court
could not consider a deposition not admitted in evidence
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.”
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,
A failure to “even whisper” about newly
O’Neal v. Kennamer, 958 F.2d 1044, 1047 (11th Cir. 1992);
but Ramsey argues that he did effectively “whisper” about
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.
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.
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
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.
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.
At summary judgment, Ramsey relied
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.
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).
this case, it is unclear how Ramsey proposes that the
court view the contradictory testimony.
Either Ramsey or
Creighton is lying or mistaken in their description of
Ramsey’s exercise regimen on June 2, 2008.
apparently asks the court to adopt Creighton’s version
over Ramsey’s own account.
Even if the court were to do
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.
Creighton says he saw
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.
Notably, the leg and arm exercises
rehabilitation plan Gamber created with Ramsey’s doctors.
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.
progression would halt if Ramsey reported pain at any
Ramsey had previously completed Step 1 a few days
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.
Yoxall, not Gamber, was
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
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
Even if it was negligent to permit Ramsey to
begin Step 3 on the same day as Step 2, there is simply
Creighton’s testimony tends to confirm that Gamber’s plan
complied with the rehabilitation sequence approved by
The court sympathizes with Ramsey’s distress over the
injury that cut short his athletic career.
It is deeply
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.
or without Creighton’s deposition testimony, Ramsey can
point to no evidence that would sustain his claims.
* * *
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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