Martin v. United States of America
Filing
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ORDER denying defendant's 11 Motion for Summary Judgment signed by District Judge Troy L. Nunley on 7/5/17; plaintiff is precluded from relying on the diagnosis of his growth at trial because he lacks expert testimony on the issue. The parties are to file a Joint Status Report within 30 days of this Order indicating their readiness to proceed to trial and proposing trial dates. (Kastilahn, A)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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DARIN MARTIN,
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No. 2:14-cv-02214-TLN-KJN
Plaintiff,
ORDER DENYING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT
v.
UNITED STATES OF AMERICA,
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Defendant.
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This matter is before the Court on Defendant Untied States of America’s (“Defendant”)
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Motion for Summary Judgment (ECF No. 11). Plaintiff Darin Martin (“Plaintiff”) opposes the
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motion. (ECF No. 12.) Defendant filed a reply. (ECF No. 16.) Having reviewed the briefing
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filed by both parties and for the foregoing reasons, the Court hereby DENIES Defendant’s
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Motion for Summary Judgment (ECF No. 11).
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I.
FACTUAL AND PROCEDURAL BACKGROUND
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On October 29, 2013, Plaintiff went to the health services clinic at the Federal
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Correctional Institution at Herlong, California. (Defendant’s Statement of Undisputed Facts
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(“SUF”), ECF No. 11-2 ¶ 1.) Plaintiff complained of skin problems on the fifth toe of his left
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foot. (SUF ¶ 1.) Plaintiff alleges Ronald Burnett, RN, treated Plaintiff for a plantar wart and
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applied Verruca Freeze to the affected area. (SUF ¶¶ 1–2.) Plaintiff alleges Burnett
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misdiagnosed the skin problem as a wart instead of a corn and improperly applied freezing agent.
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(SUF ¶ 2.) The freezing agent was applied twice and in both instances leaked from the affected
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area causing burns on all of his toes and the ball of his foot. (Plaintiff’s Suppl. Statement of
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Undisputed Facts, ECF No. 12-1 ¶¶ 8–9.) Plaintiff received treatment for several months to heal
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the burns. (ECF No. 12-1 ¶ 10.)
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Plaintiff submitted an Administrative Tort Claim to the United States Department of
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Justice Federal Bureau of Prisons on December 3, 2013. (Compl., ECF No. 1 ¶ 4.) The
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Department of Justice denied his claim on March 25, 2014, and notified Plaintiff that he had six
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months to commence an action in the appropriate United States District Court. (ECF No. 1 ¶ 4;
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ECF No. 1, Exh. A at 7.) Plaintiff commenced the instant action on September 24, 2014. (ECF
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No. 1) The Court issued a scheduling order on March 26, 2015, setting the deadline to designate
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experts pursuant to Federal Rule of Civil Procedure 26(a)(2) for January 28, 2016. (ECF No. 8.)
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Plaintiff has not filed or served upon Defendant designations of expert witnesses nor has Plaintiff
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served disclosures pursuant to Rule 26(a)(2). (SUF ¶ 6.)
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Defendants filed the instant motion on April 8, 2016, seeking an order from this court
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granting summary judgment in its favor because Plaintiff failed to designate expert witnesses as
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required to establish a professional negligence claim. (ECF No. 11.)
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II.
STANDARD OF LAW
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Summary judgment is appropriate when the moving party demonstrates no genuine issue
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as to any material fact exists and the moving party is entitled to judgment as a matter of law. Fed.
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R. Civ. P. 56(a); Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). Under summary
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judgment practice, the moving party always bears the initial responsibility of informing the
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district court of the basis of its motion, and identifying those portions of “the pleadings,
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depositions, answers to interrogatories, and admissions on file together with affidavits, if any,”
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which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v.
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Catrett, 477 U.S. 317, 323 (1986). “[W]here the nonmoving party will bear the burden of proof
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at trial on a dispositive issue, a summary judgment motion may properly be made in reliance
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solely on the pleadings, depositions, answers to interrogatories, and admissions on file.” Id. at
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324 (internal quotations omitted). Indeed, summary judgment should be entered against a party
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who does not make a showing sufficient to establish the existence of an element essential to that
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party’s case, and on which that party will bear the burden of proof at trial.
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If the moving party meets its initial responsibility, the burden then shifts to the opposing
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party to establish that a genuine issue as to any material fact actually does exist. Matsushita Elec.
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Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585–87 (1986); First Nat’l Bank of Ariz. v. Cities
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Serv. Co., 391 U.S. 253, 288–89 (1968). In attempting to establish the existence of this factual
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dispute, the opposing party may not rely upon the denials of its pleadings, but is required to
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tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in
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support of its contention that the dispute exists. Fed. R. Civ. P. 56(c). The opposing party must
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demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the
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suit under the governing law, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986), and that
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the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for
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the nonmoving party. Id. at 251–52.
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In the endeavor to establish the existence of a factual dispute, the opposing party need not
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establish a material issue of fact conclusively in its favor. It is sufficient that “the claimed factual
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dispute be shown to require a jury or judge to resolve the parties’ differing versions of the truth at
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trial.” First Nat’l Bank, 391 U.S. at 288–89. Thus, the “purpose of summary judgment is to
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‘pierce the pleadings and to assess the proof in order to see whether there is a genuine need for
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trial.’” Matsushita, 475 U.S. at 587 (quoting Rule 56(e) advisory committee’s note on 1963
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amendments).
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In resolving the summary judgment motion, the court examines the pleadings, depositions,
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answers to interrogatories, and admissions on file, together with any applicable affidavits. Fed.
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R. Civ. P. 56(c); SEC v. Seaboard Corp., 677 F.2d 1301, 1305–06 (9th Cir. 1982). The evidence
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of the opposing party is to be believed, and all reasonable inferences that may be drawn from the
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facts pleaded before the court must be drawn in favor of the opposing party. Anderson, 477 U.S.
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at 255. Nevertheless, inferences are not drawn out of the air, and it is the opposing party’s
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obligation to produce a factual predicate from which the inference may be drawn. Richards v.
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Nielsen Freight Lines, 602 F. Supp. 1224, 1244–45 (E.D. Cal. 1985), aff’d, 810 F.2d 898 (9th Cir.
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1987). Finally, to demonstrate a genuine issue that necessitates a jury trial, the opposing party
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“must do more than simply show that there is some metaphysical doubt as to the material facts.”
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Matsushita, 475 U.S. at 586. “Where the record taken as a whole could not lead a rational trier of
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fact to find for the nonmoving party, there is no ‘genuine issue for trial.’” Id. at 587.
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III.
ANALYSIS
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Defendant seeks summary judgment on the ground that Plaintiff has not designated expert
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witnesses to prove the requisite standard of care and to prove a breach of the standard of care
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occurred. (ECF No. 11 at 3.) Plaintiff argues his complaint alleges a claim for ordinary
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negligence instead of professional negligence and that ordinary negligence does not require
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expert testimony to prove the appropriate standard of care or breach of that care. (ECF No. 12 at
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3.) If the Court finds professional negligence applies then Plaintiff argues the actions of RN
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Ronald Burnett fell within the common knowledge exception of the requirement for expert
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testimony. (ECF No. 12 at 5–8.)
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For the purposes of this motion, Defendant does not dispute the diagnosis was improper or
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the misapplication of the freezing agent. Defendant focuses solely on the legal question of the
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necessity of expert testimony. Furthermore, neither party disputes that if professional negligence
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applies and the common knowledge exception is not applicable, then Plaintiff’s failure to
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designate an expert makes summary judgment appropriate. Similarly, the parties acknowledge
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that if ordinary negligence applies then a triable issue of fact exists and summary judgment is
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inappropriate. Accordingly, the Court is tasked with determining whether professional
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negligence applies and, if so, whether the facts meet the common knowledge exception.
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A. Professional Negligence
Plaintiff asserts that his claim is one for ordinary negligence and that a professional
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standard of care is not applicable. (ECF No. 12 at 3.) Plaintiff cites Flowers v. Torrance
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Memorial Hospital Medical Center, 8 Cal. 4th 992 (1994), as the applicable rule to determine
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whether an action falls under ordinary or professional negligence standards. In Flowers, the
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California Supreme Court reviewed an appellate court’s decision which denied a motion for
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summary judgment. The appellate court found that a sequence of facts in a single cause of action
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can give rise to both ordinary and professional negligence. Flowers, 8 Cal. 4th at 996. The
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California Supreme Court reversed the decision and held that a given set of facts may not give
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rise to both professional and ordinary negligence. Id. at 997. In so doing, the California Supreme
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Court explained there is a single claim of negligence which may have different standards of care
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under different circumstances. Id. The court articulated a totality of the circumstances approach
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to determine the appropriate standard of care. Id. The court looked at the risk involved in the
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acts and surrounding circumstances to determine if a heightened level of care should apply. Id.
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The distinction of professional negligence is significant only insofar as it identifies a special skill
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or knowledge that may create a relevant circumstance to consider in deciding the standard of care.
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Id. at 1000.
Here, Plaintiff alleges Defendant’s employees diagnosed the growth on his foot as a wart
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and applied Verruca Freeze to the growth resulting in burns to the toes and the ball of his left
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foot. (ECF No. 12-1 ¶¶ 8–9.) Diagnosing a growth and determining the appropriate treatment to
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apply is a relevant circumstance which suggests the need for special skill or knowledge. An
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ordinary layman may not know the difference between a wart, corn or bunion. Additionally,
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treatments are typically within the purview of medical professionals. Plaintiff argues “any
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normal non-medical person using the product who simply reads the product label and proceeds
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‘per the manufactures [sic] instructions,’ would know that RN Burnett applied the freeze
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negligently. (ECF No. 12 at 4.) However, Plaintiff seems to confuse the issues presented to the
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Court. The Court must first answer what standard of care applies. According to Flowers, the
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Court must look at the risk in consideration of all relevant circumstances. Plaintiff’s argument
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tends to the next question, whether the application of the freezing agent was reasonable under the
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circumstances and whether an expert is necessary to demonstrate that reasonableness. Based on
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the circumstances of the application, the diagnosis, and the freezing agent used, the Court finds
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Plaintiff is, in fact, alleging a claim for professional negligence to which a professional standard
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of care applies.
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B. Common Knowledge Exception
Plaintiff brings a claim for negligence under the Federal Tort Claims Act. (ECF No. 1.)
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In an FTCA action, the Court applies the law of the state in which the alleged tort occurred.
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Conrad v. United States, 447 F.3d 760, 767 (9th Cir. 2006). Under California law, “[g]enerally,
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‘negligence’ is the failure to exercise the care a reasonable person would exercise under the
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circumstances. Medical negligence is one type of negligence, to which general negligence
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principles apply.” Massey v. Mercy Medical Center Redding, 180 Cal App. 4th 690, 694 (2009)
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(citations omitted). A nurse is negligent if he or she fails to use the level of skill or knowledge
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that a reasonable nurse would use in similar circumstances. Alef v. Alta Bates Hospital, 5 Cal.
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App. 4th 208, 215 (1992). The standard of care to be measured in professional negligence actions
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is a matter soundly within the knowledge of experts. Landeros v. Flood, 17 Cal. 3d 399, 410
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(1976); see also Lattimer v. Dickey, 239 Cal. App. 4th 959, 969 (2015) (applying the requirement
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of expert testimony to circumstances involving medical malpractice against nurses). However,
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California courts do not require expert testimony where the alleged medical malpractice lies
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within the common knowledge of a layperson. George v. Sonoma Cnty. Sheriff’s Dep’t, 732 F.
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Supp. 2d 922, 948 (N.D. Cal. 2010) (Expert testimony regarding the standard of care was not
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required on a motion for summary judgment where nurse failed to provide food to inmate prior to
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discharge). The common knowledge exception is “principally limited to situations in which the
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plaintiff can invoke the doctrine of res ispa loquitur.” Flowers, 8 Cal. 4th at 1001. The classic
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example is leaving behind a scalpel in patient’s body after surgery. Id.
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Plaintiff alleges “[b]y not properly diagnosing the skin growth, not taking proper
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precautions so that the liquid freezing agent did not leak over the non-effected areas, and then
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after burning Plaintiff re-applying the freezing agent and re-burning him the medical providers at
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FCI Herlong breached their duty of care to him.” (ECF No. 1 ¶ 25.) Plaintiff offers nothing more
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than unsupported statements in his opposition as proof that a layman would know how to
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distinguish a wart from a corn and properly diagnosis the growth. Plaintiff argues warts are
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common ailments and using a freezing agent is a process known to many. (ECF No. 12 at 5.)
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However, Plaintiff offers no evidence to support this statement. Plaintiff cites cases in support of
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finding a common knowledge exception. (ECF No. 12 at 6.) However, the cases cited by
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Plaintiff deal with burns and infections resulting from improper use of medical equipment such as
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heating pads and needles. See Timbrall v. Suburban Hospital, 4 Cal. 2d 68 (1935) (finding
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common knowledge exception where the patient was burned by application of hot compresses);
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Moore v. Steen, 102 Cal. App. 723 (1929) (finding common knowledge where patient was burned
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by the use of an X-ray machine); and Barham v. Widing, 210 Cal. 206 (1930) (finding common
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knowledge where the patient sustained an infection from an unsterilized needle). Significantly,
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these cases do not deal with the diagnosis of an injury. In fact, Plaintiff cites no cases for the
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proposition that the diagnosis and proper treatment of a growth on a patient — or any ailment —
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are within the common knowledge of laymen.
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Courts have found the diagnosis of an ailment requires expert testimony. See Hawkins v.
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United States, No. 1:04-cv-05771-GMS, 2010 WL 2720956, at *3 (E.D. Cal. July 8, 2010)
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(finding the diagnosis of a brain tumor required expert testimony). Accordingly, Plaintiff is
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required to have expert testimony in regards to the possible misdiagnosis. Plaintiff does not
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dispute that if the common knowledge exception does not apply then expert testimony is required.
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See Massey, 180 Cal App. 4th at 694. Plaintiff has not designated any expert witnesses and it is
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long past the time to do so. Without expert testimony, Plaintiff cannot demonstrate the
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appropriate level of care at trial and prove a breach of that duty occurred. Therefore, Plaintiff
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cannot rely on the alleged misdiagnosis as a means for establishing his negligence claim at trial.
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As to the allegation that RN Burnett did not take proper precautions to prevent the
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freezing agent from leaking onto healthy skin, the Court finds that it is within the common
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knowledge of the layman. Defendant attempts to characterize the events as misapplying a
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cryosurgical product. (ECF No. 16 at 4.) However, the classification of Verruca Freeze in
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medical terms does not alter the product itself and a layman’s understanding of the product. The
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product is a freezing agent of which many over-the-counter variations are sold. It is within the
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common knowledge to not allow the freezing agent — or any other ointment — to leak onto
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healthy skin as it could result in damage to the skin. Additionally, the cases cited by Plaintiff
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demonstrate that negligence on the instant set of facts may be apparent simply from the injury and
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the burn that occurred. See Barrett v. JP Morgan Chase Bank, No. 14cv2976 DMS (WVG), 2016
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WL 3523046, at * 4 (S.D. Cal., June 27, 2016) (finding that res ipsa loquitur applies in the above
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cited cases because negligence is apparent from the alleged damage). Here, Plaintiff has
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presented evidence that documents the existence of the burns and how the burns occurred. (See
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ECF No. 12-2.) Accordingly, a reasonable fact finder could find that the burns give rise to a
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claim of negligence and expert testimony is not necessary.
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As demonstrated on the instant set of facts, during the course of treatment more than one
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choice may be made in how to approach a patient’s ailment. Even when one decision does not
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amount to negligence other decisions may. In a claim for negligence “[t]he number and variety of
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the facts alleged do not establish more than one cause of action so long as their result, whether
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they be considered severally or in combination, is the violation of but one right by a single legal
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wrong.” Baltimore Steamship Co. v. Phillips, 274 U.S. 316, 321 (1927). Accordingly, so long as
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one decision regarding Plaintiff’s treatment rises to a level of negligent behavior resulting in a
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single harm Plaintiff can still maintain a cause of action for negligence. Here, the alleged
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misdiagnosis of Plaintiff’s toe growth may have been negligent, but as the Court explained above
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it requires exert testimony to prove. Plaintiff has not designated or provided the Court with any
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expert designations. Accordingly, Plaintiffs claim for negligence may not rely on the alleged
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misdiagnosis.
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However, even if Plaintiff cannot demonstrate negligence based on a misdiagnosis,
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Plaintiff can still prove negligence on the next step in the sequence — the alleged failure to take
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precautions to protect Plaintiff during the application of the freezing agent. Considered in
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isolation, the failure to take precautions can constitute a breach of the standard of care and can
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maintain a claim for negligence. Baltimore Steamship, 274 U.S. at 321. The Court found above
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the failure to protect against leaked freezing agent falls within the common knowledge exception
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and can be proved without expert testimony. Accordingly, Defendant’s Motion for Summary
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Judgment is denied.
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IV.
Conclusion
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For the above mentioned reasons, Defendant’s Motion for Summary Judgment (ECF No.
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11) is hereby DENIED, but Plaintiff is precluded from relying on the diagnosis of his growth at
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trial because he lacks expert testimony on the issue. The parties are hereby ordered to file a Joint
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Status Report within thirty (30) days of this Order indicating their readiness to proceed to trial
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and proposing trial dates.
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IT IS SO ORDERED.
Dated: July 5, 2017
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Troy L. Nunley
United States District Judge
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