Hobbs v. USA

Filing 18

ORDER granting 10 Defendant's Motion for Summary Judgment. This case is dismissed.Signed by Judge Billy Roy Wilson on 9/11/2012. (dmn)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
STEVE PRINCE HOBBS
vs.

PLAINTIFF
4:11-CV-00417-BRW

UNITED STATES OF AMERICA

DEFENDANT
ORDER

Pending is Defendant’s Motion for Summary Judgment (Doc. No. 10). Plaintiff has not
responded, and the time for doing so has passed.1 For the reasons set out below, Defendant’s
Motion is GRANTED.
I.

SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate only when there is no genuine issue of material fact, so

that the dispute may be decided on purely legal grounds.2 The Supreme Court has established
guidelines to assist trial courts in determining whether this standard has been met:
The inquiry performed is the threshold inquiry of determining whether there is the
need for a trial -- whether, in other words, there are any genuine factual issues that
properly can be resolved only by a finder of fact because they may reasonably be
resolved in favor of either party.3
The Court of Appeals for the Eighth Circuit has cautioned that summary judgment is an
extreme remedy that should be granted only when the movant has established a right to the
judgment beyond controversy.4 Nevertheless, summary judgment promotes judicial economy by

1

Any response was due by August 23, 2012.

2

Holloway v. Lockhart, 813 F.2d 874 (8th Cir. 1987); Fed. R. Civ. P. 56.

3

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).

4

Inland Oil & Transp. Co. v. United States, 600 F.2d 725, 727 (8th Cir. 1979).
1

preventing trial when no genuine issue of fact remains.5 I must view the facts in the light most
favorable to the party opposing the motion.6 The Eighth Circuit has also set out the burden of
the parties in connection with a summary judgment motion:
[T]he burden on the party moving for summary judgment is only to demonstrate,
i.e.,“[to point] out to the District Court,” that the record does not disclose a genuine
dispute on a material fact. It is enough for the movant to bring up the fact that the
record does not contain such an issue and to identify that part of the record which
bears out his assertion. Once this is done, his burden is discharged, and, if the record
in fact bears out the claim that no genuine dispute exists on any material fact, it is
then the respondent’s burden to set forth affirmative evidence, specific facts,
showing that there is a genuine dispute on that issue. If the respondent fails to carry
that burden, summary judgment should be granted.7
Only disputes over facts that may affect the outcome of the suit under governing law will
properly preclude the entry of summary judgment.8
II.

BACKGROUND
Plaintiff, a United States Army veteran who fought in Vietnam, was a patient at the

Veterans Administration Hospital in Little Rock, Arkansas.9 Plaintiff was prescribed Lisinopril,
and another medication, to control his hypertension. On April 28, 2009, Plaintiff was admitted
to the emergency room after a car wreck. Apparently, Plaintiff was coughing and blacked out,
and then struck a retaining wall.
Plaintiff alleges that the Lisinopril he was prescribed for his high blood pressure caused
the coughing, which caused him to black out, which in turn caused the accident. Plaintiff sued

5

Id. at 728.

6

Id. at 727-28.

7

Counts v. MK-Ferguson Co., 862 F.2d 1338, 1339 (8th Cir. 1988) (quoting City of Mt.
Pleasant v. Associated Elec. Coop., 838 F.2d 268, 273-74 (8th Cir. 1988) (citations omitted)).
8

Anderson, 477 U.S. at 248.

9

Doc. No. 1.
2

the United States for medical negligence under the Federal Tort Claims Act.10 The Government
asks that summary judgment be entered in its favor;11 Plaintiff has not opposed the
Government’s Motion.
III.

DISCUSSION
The Government asserts that proximate cause is lacking in this case, and that Plaintiff has

failed to establish the standard of care for this locality. I agree.
In actions brought under the Federal Tort Claims Act, courts must apply the law of the
state in which the acts complained of took place.12 Because the acts Plaintiff complains of
occurred in Arkansas, Arkansas law applies. Under Arkansas law, a plaintiff alleging medical
malpractice has to burden of proving, through “expert testimony provided only by a qualified
medical expert that as a proximate result thereof the injured person suffered injuries that would
not otherwise have occurred.”13 In other words, Plaintiff must prove that but-for the Lisinopril,
he would not have coughed on April 28, 2009. But Dr. Lige Rushing, Plaintiff’s only expert
witness, cannot rule out Plaintiff’s smoking as the cause of the April 28, 2009, cough.14
With respect to the standard of care, the expert who testifies must be able to speak to the
standard of care “in the locality in which he or she practices or in a similar locality . . . .”15
Plaintiff’s expert is an internal medicine and rheumatology physician practicing in Dallas, Texas.
Dr. Rushing is not familiar with the Veterans Affairs medical practice in Arkansas, he does not
10

28 U.S.C. § 2671 et seq.

11

Doc. No. 10.

12

See Goodman v. United States, 2 F.3d 291, 292 (8th Cir. 1993).

13

Ark. Code Ann. § 16-114-206(a)(3).

14

Doc. No. 15.

15

Ark. Code Ann. § 16-114-206(a)(1).
3

practice here, and he has not been given any information about the local medical community and
practice.16 Based on the record, Plaintiff’s proof regarding the degree of skill and learning used
by Central Arkansas Veterans Healthcare System practicing in North Little Rock, Arkansas,
fails.
Defendant’s arguments are well taken, and Plaintiff has not opposed them. Accordingly,
Defendant’s Motion for Summary Judgment is GRANTED and this case is DISMISSED.
IT IS SO ORDERED this 11th day of September, 2012.

/s/Billy Roy Wilson
UNITED STATES DISTRICT JUDGE

16

Doc. No. 15.
4