Coles v. Hahn
ORDER granting 76 84 Motions for Summary Judgment. Signed by Judge D. P. Marshall Jr. on 2/21/13. (kpr)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
CECIL A. COLES
HERBERT L. HAHN, M.D., in his
official and individual capacities;
MEDICINE; and BAPTIST
Cecil Coles contends that Dr. Herbert Hahn botched the replacement of
Coles's left knee. He has sued Dr. Hahn, OrthoArkansas Sports Medicine (the
clinic that employed the doctor), and Baptist Health Systems, where the
surgery was done. Because of the employment relationship, Dr. Hahn and
OrthoArkansas are one for purposes of liability; and when the Court refers to
Dr. Hahn it means both. Dr. Hahn and Baptist seek judgment as a matter of
law because, they say, Coles has not offered any expert's opinion that Dr.
Hahn's care was substandard or the cause of Coles's current knee problems.
Defendants stand on an affidavit from Dr. Kyle Hefley, a board-certified
orthopedic surgeon in Little Rock, who says the knee replacement was "well
done[.]" Document No. 76-2 at 6. Baptist also offers an affidavit from the staff
member who monitors such things, which states, contrary to Coles's
allegation, that prosthetic devices used in his new left knee had not been
recalled before his surgery and have not been recalled since. Document No. 84,
Mindful that Coles is proceeding pro se in a case alleging medical
malpractice, the Court has been lenient with Coles about deadlines. He failed
to offer expert testimony by the deadline in the scheduling order, D1cument
No. 35, so the Court gave him more time to do so. Document No. 83.
response, Coles provided the name and telephone number of Dr, Elliott
Clemence, a doctor currently treating Coles's knee problems. DocurJent No.
88. The Court explained to Coles that this did not suffice and directeq him to
provide an expert's opinion compliant with the Rules of Civil Procequre by
a new deadline. Document No. 90. In response, Coles has listed several points
that Dr. Clemence will testify to. Document No. 92.
Ark. 320, 325, 915 S.W.2d 253, 256 (1995). Coles's list of things tow ich he
says Dr. Clemence will testify falls short, both under Rule 26
governing Arkansas law about malpractice.
In terms of the Rule, there is no statement of what Dr. Clemen e bases
his opinion on, and no statement of qualifications or experience. FE . R. CIV.
P. 26(a) (2) (B). While the Court believes a written report is required, C les' s list
also falls short of an adequate summary of facts and opinions about xpected
testimony in this surgery-centered dispute. FED. R. CIV. P. 26(a)(2)(C). The
Court is not even sure that Dr. Clemence is willing to testify. Cole 's list is
simply too thin, and too late in the case, to satisfy his Rule 26 obligati
Coles's list falls short in terms of Arkansas law, too. Dr. Clem nee has
not established familiarity with the standard of care in Little Rock o similar
localities. ARK. CODE. ANN.§ 16-114-206(a)(1). No opinion has beene pressed
to a reasonable degree of medical certainty. Lee v. Martindale, 103
36, 43, 286 S.W.3d 169, 174 (2008). Most importantly, no opinion
offered that Dr. Hahn deviated from the standard of care or that any d viation
proximately caused Coles's current knee problems. Ibid. And C
offered no evidence to back up his recall allegation. At this point in
nearly two years in, the law obligates Coles to move beyond argum nt and
contention to proof meeting Defendants' proof that neither Dr. H hn nor
Baptist did anything wrong. Hamilton v. Allen, 100 Ark. App. 240,
S.W.3d 627,631 (2007) (en bane). Coles has not done so.
Motions, Document Nos. 76 & 84, granted. Document No. 92 is inc rrectly
docketed as a motion. It is a response to the Court's Order; the Clerk should
correct the docket.
D.P. Marshall Jr.
United States District udge
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