Thornton v. Mitchell et al (JOINT ASSIGN)(MAG2)

Filing 134

MEMORANDUM OPINION AND ORDER: It is ORDERED that: (1) The Estate's Motion to Reconsider, (Doc. 126 ), is DENIED as further set out in the opinion and order; and, (2) The Defendants' Motion to Strike, (Doc. 130 ), is DENIED as moot as further set out in the opinion and order. Signed by Honorable Judge R. Austin Huffaker, Jr on 8/12/2020. (dmn, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
EASTERN DIVISION
LATISA THORNTON, as
Administratrix of the Estate of
MILDRED RILEY, deceased,
Plaintiff,
v.
JOHN W. MITCHELL, M.D., and
THE HEART CENTER
CARDIOLOGY, P.C.,
Defendants.

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Case No. 3:16-cv-00829-RAH
(WO)

MEMORANDUM OPINION AND ORDER
Defendants John D. Mitchell, M.D. and The Heart Center Cardiology, P.C.
filed a motion for summary judgment, (Doc. 79), in this wrongful death, medical
malpractice case that was granted by the Magistrate Judge upon report and
recommendation (Report) on July 9, 2018, (Doc. 108). Upon review by this Court
after both sides filed objections, (see Docs. 109, 110), this Court sustained the
Magistrate Judge’s Report to the extent it recommended the entry of summary
judgment in the Defendants’ favor on grounds that the Plaintiff, Latisa Thornton, as
the Administratrix of the Estate of Mildred Riley (Plaintiff, Thornton or Estate), had
failed to meet her burden of proof on causation, (Doc. 124). The Court also
overruled the Magistrate Judge’s Report as it concerned the issue of whether the
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Estate had shown a question of fact on the issue of breach of duty through testimony
from a similarly situated healthcare provider.
The case is again before the Court, this time on the Estate’s Motion to
Reconsider, (Doc. 126), which challenges both of the stated reasons for the entry of
summary judgment.

The Defendants have filed a response, (Doc. 129), and the

Estate a reply (Doc. 131), and therefore the motion is ripe for resolution.
As the Defendants recognize, “[a] motion to reconsider is only available when
a party presents the court with evidence of an intervening change in controlling law,
the availability of new evidence, or the need to correct clear error or manifest
injustice.” Gipson v. Mattox, 511 F.Supp.2d 1182, 1185 (S.D. Ala. 2007) (internal
quotes omitted).
Motions to reconsider serve a valuable but limited function. They
do not exist to permit losing parties to prop up arguments previously
made or to inject new ones, nor to provide evidence or authority
previously omitted. They do not, in short, serve to relieve a party of
the consequences of its original, limited presentation.
Nelson v. Whirlpool Corp., 668 F.Supp.2s 1368, 1379 (S.D. Ala. 2009) (internal
quotes omitted).
Of the three limited occasions in which a motion to reconsider is appropriate,
the Estate focuses on only one. That is, the Estate claims the Court clearly erred on
the two stated grounds for granting summary judgment. Upon review of the Estate’s
Motion to Reconsider (Motion), the Defendants’ Response, and the Estate’s Reply,

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and upon review of the record once again, including the operative complaint, the
Defendants’ summary judgment motion and the Estate’s response thereto, the Court
disagrees with the Estate’s assertion and concludes that the Estate’s Motion is due
to be denied.
The Estate first argues the Court erred when it concluded that the Estate’s two
cardiologist experts were not similarly situated to Defendant John W. Mitchell, M.D.
and his medical practice. In particular, the Estate argues that the area of medical
practice at issue is “clinical cardiology” and not “interventional cardiology” and
therefore the Estate’s experts, neither of whom is an interventional cardiologist, can
testify to a breach of the standard of care by Dr. Mitchell, an interventional
cardiologist. To further emphasize its point that the area of medicine at issue is
clinical cardiology, the Estate now focuses on Dr. A. Scott Westermeyer. As to both,
the Estate argues that they “misdiagnosed” the decedent’s condition, which
according to the Estate, constitutes the practice of clinical cardiology.
Once again, the Estate attempts to direct attention away from the area of
medical practice actually at issue in this case. As the operative complaint makes
clear, this suit concerns the failure by an interventional cardiologist to timely
perform an interventional procedure (i.e., a cardiac catheterization with
percutaneous intervention).

While the Estate now attempts to minimize the

interventional cardiology aspect of the lawsuit by referring only to a “catheterization
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procedure” or a “catheterization with possible percutaneous intervention,” in order
for the Estate’s suit to have any basis against the Defendants (especially from a
proximate causation standpoint), the suit must stand on the premise that a
catheterization1 would have revealed the necessity of a percutaneous intervention
procedure and that the percutaneous intervention procedure, if timely performed,
probably would have changed the decedent’s outcome (she would not have died).
Thus, the area of practice clearly was founded upon the area of interventional
cardiology, an area in which neither of the Estate’s experts practiced, and a medical
procedure that neither expert could perform.2

See Panayiotou v. Johnson, 995 So.

2d 871, 877 (Ala. 2008) (recognizing that interventional cardiology is a specialty
and that the plaintiff’s cardiologist expert could not testify against the defendant
interventional cardiologist).
The Estate’s arguments on this point are no different from those previously
raised in the briefing on the Defendants’ summary judgment motion that this Court
already has considered. A party cannot show clear error or manifest injustice by
“merely reargu[ing] points previously considered and rejected by the Court.”

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A catheterization would not have changed the outcome; only an interventional
procedure would.
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Of course, the Estate could have chosen to retain experts who performed
interventional procedures such as Dr. Mitchell, but that is not the set of facts
presented here.
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Colomar v. Mercy Hosp., Inc., 242 F.R.D. 671, 684 (S.D. Fla. 2007). And “to the
extent [a party] ... tries to raise new arguments and point to new evidence that could
have been raised earlier, this is insufficient grounds to satisfy the clear error or
manifest injustice standard for granting a motion for reconsideration.” Campero
USA Corp. v. ADS Foodservice, LLC, 916 F.Supp.2d 1284, 1292 (S.D. Fla. 2012)
(internal citation omitted). “[C]lear error or manifest injustice occurs where the
Court has patently misunderstood a party, or has made a decision outside the
adversarial issues presented to the Court by the parties, or has made an error not of
reasoning but of apprehension.” Id. at 1291-93. Here, the Estate’s argument
concerning the standard of care at issue is just that; an attempt to reargue points
previously considered and rejected by the Court.
The Estate’s new focus on Dr. Westermeyer is equally unavailing. Apparently
recognizing that its two experts can only testify to clinical cardiology, and not
interventional cardiology, the Estate now argues that its experts were competent to
testify against Dr. Westermeyer, who the Estate now claims also breached the
applicable standard of care. (Doc. 127, p. 10.) As the Defendants point out,3 (Doc.

The Defendants have filed a Motion to Strike, (Doc. 130), the Estate’s arguments
as to Dr. Westermeyer, which the Defendants assert are being raised for the first time
in the Estate’s Motion. The Defendants’ motion to strike is due to be denied, as the
Defendants’ concern is already subsumed into the general standard that governs
motions to reconsider. See Gipson v. Mattox, 511 F.Supp.2d 1182, 1185 (S.D. Ala.
2007) (motions to reconsider “do not exist to permit losing parties to prop up
arguments . . . to inject new ones, nor to provide evidence or authority previously
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129, p. 5.), the Estate never specifically claimed that Dr. Westermeyer breached the
standard of care or that The Heart Center was being sued for Dr. Westermeyer’s
negligence before raising it for the first time in the motion to reconsider; not in the
Complaint and not in its 78-page summary judgment response brief. See ALA. CODE
§ 6-5-551 (1975) (AMLA requires a plaintiff to “include in the complaint filed in
the action a detailed specification and factual description of each act and omission
alleged by plaintiff to render the health care provider liable to plaintiff and shall
include when feasible and ascertainable the date, time, and place of the act or acts.”).
Indeed, the only substantive reference to Dr. Westermeyer during the course of
proceedings prior to the Court’s summary judgment order was in the Estate’s motion
to preclude Dr. Westermeyer from giving any opinion testimony in the case, and
even then, the Estate never asserted that the Defendants were being sued for the
medical negligence of Dr. Westermeyer. (Docs. 80, 89.) Having not plead any
negligence by Dr. Westermeyer, having not argued in its summary judgment
responsive brief about Dr. Westermeyer, and having undertaken efforts to preclude
him from giving any opinion testimony4 in this case, the Estate cannot now, after-

omitted. They do not, in short, serve to relieve a party of the consequences of its
original, limited presentation.”).
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Had the Estate alleged and argued that it was suing The Heart Center for medical
negligence by Dr. Westermeyer, Dr. Westermeyer not only would have been
permitted to testify as a fact witness, but also would have been able to give opinion
testimony that neither he nor The Heart Center through him breached the standard
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the-fact, suddenly inject his alleged negligence as grounds for reconsidering the
Court’s prior summary judgment order. In short, it is far too late for the Estate to
now claim that summary judgment should not be granted because the Estate’s
experts could testify against Dr. Westermeyer even though they could not testify
against Dr. Mitchell. See Mays v. U.S. Postal Serv., 122 F.3d 43, 46 (11th Cir. 1997);
Rossi v. Troy State University, 330 F.Supp.2d 1240, 1249 (M.D. Ala. 2002).
Aside from the expert competency issue, the Estate also finds fault with the
Court’s decision to sustain the Magistrate Judge’s Report as it concerns causation.
The crux of the Estate’s argument is simply that the medical facts and opinions from
the Estate’s two cardiologist experts are sufficient to provide a legally sufficient
cause of death. (Doc. 127, p. 12.) The Estate further argues that the Court should
not have followed the Alabama Supreme Court’s decision in Shanes v. Kiser, 729
So. 2d 319 (Ala. 1999), but instead should have followed the Alabama Court of Civil
Appeals’ decision in Waddail v. Roberts, 827 So. 2d 796 (Ala. Civ. App. 2001), a
death case in which the appellate court allowed the case to proceed despite the lack
of an autopsy.
Contrary to the Estate’s assertion, the Court reviewed the record in detail,
especially through the lens of Daubert and relevant Alabama Supreme Court

of care. But that is not the path that the Estate chose to travel with respect to Dr.
Westermeyer.
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precedent interpreting causation under the AMLA. The Court need not engage in
the analysis that it already, twice before, has engaged in. (See Docs. 108, 124.)
While the Estate did not attempt to distinguish Shanes through the Waddail case
previously, this Court’s review of the case does not reveal that Waddail trumps
Shanes as the more persuasive decision applicable to this case. Unlike the facts here,
in Waddail, there was no dispute as to the injury-causing agent (there, diabetic
ketoacidosis). See Waddail, 827 So. 2d at 800 (“Like the court in Parker, we know
the injury-causing agent in this case, specifically diabetic ketoacidosis.”). Here, as
in Shanes, it is necessary to know the precise injury-causing agent, which possibly
could have been any number of agents, including an electrolyte imbalance,
obstructive sleep apnea, pulmonary thromboembolism, stroke, aortic aneurysm,
heart attack, or cardiac arrhythmia. Id. at 801 (“In Shanes, it was necessary to know
the precise cause of death, because the mother could have died from a heart attack,
a massive stroke, a pulmonary embolism, or an aneurysm.”). Therefore, for the
reasons that the Estate’s challenge to the similarly situated healthcare provider issue
are denied, so too is this one. See Mays, 122 F.3d at 46.
Accordingly, it is hereby ORDERED that:
(1) The Estate’s Motion to Reconsider, (Doc. 126), is DENIED; and,
(2) The Defendants’ Motion to Strike, (Doc. 130), is DENIED as moot.

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DONE, this 12th day of August, 2020.

/s/ R. Austin Huffaker, Jr.
R. AUSTIN HUFFAKER, JR.
UNITED STATES DISTRICT JUDGE

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