Barroca v. United States of America

Filing 86

MEMORANDUM AND ORDER granting 76 Motion for Summary Judgment. Signed by District Judge Daniel D. Crabtree on 5/10/2022. Mailed to pro se party Robert Barroca by regular mail. (heo)

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
ROBERT BARROCA,
Plaintiff,
v.

Case No. 19-2688-DDC-TJJ

UNITED STATES OF AMERICA,
Defendant.
____________________________________
MEMORANDUM AND ORDER
Plaintiff Robert Barroca broke his right foot while running stairs at the prison where he
was incarcerated. He asserts that the prison’s medical officials improperly treated his broken
foot, causing it to take twice as long to heal. Appearing pro se, 1 plaintiff brings this suit against
defendant United States of America under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§
1346(b), 2671–2680. In an earlier Memorandum and Order, the court dismissed several aspects
of plaintiff’s suit and granted summary judgment against other aspects. See generally Doc. 59.
So, only a small slice of plaintiff’s suit remains: a claim against defendant for medical
malpractice based on allegedly negligent care of his broken right foot. Defendant now moves for
summary judgment against that claim too, arguing that plaintiff has failed to provide expert
testimony to support his claim, as required by Kansas law. See Doc. 76. Because plaintiff’s
deficiency is fatal to his claim, the court grants summary judgment for defendant. The court
explains this ruling, below.

1

Because plaintiff appears pro se, the court construes his filings liberally and holds them “to a less
stringent standard than formal pleadings drafted by lawyers.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th
Cir. 1991). But the court can’t serve as a pro se plaintiff’s advocate. See id.

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I.

Background
In his Second Amended Complaint, plaintiff alleges he broke his right foot on January

22, 2016, while running stairs at the United States Penitentiary (USP) Leavenworth, where he
then was incarcerated. Doc. 36 at 9 (Second Am. Compl. ¶ 31). Plaintiff alleges he tried to seek
medical care the same day, but prison medical staff refused to see him for another three days.
See id. (Second Am. Compl. ¶¶ 31–32). When staff eventually attended to plaintiff, they
performed an x-ray and confirmed that his right foot was broken. Medical staff then placed
plaintiff’s foot in a plaster cast. But, plaintiff alleges, the physician’s assistant and nurse who
applied the cast “both admitted to not knowing how to apply a cast and put it on wrong.” Id. at
9–10 (Second Am. Compl. ¶ 33). Plaintiff alleges that the two medical officials “failed to bend
[his] foot flat as the cast was applied which resulted in the cast hardening in the shape of [an] L.”
Id.
After casting plaintiff’s foot, medical staff directed plaintiff not to place any weight on
the cast. While plaintiff alleges that staff provided him with crutches, he alleges he could not
navigate the prison’s stairs, bathrooms, or showers without placing weight on the cast. Id. at 10
(Second Am. Compl. ¶¶ 34–35). He alleges he asked medical staff to recast his foot, but that
they refused. Id. (Second Am. Compl. ¶ 35). And when plaintiff reported that the cast was
pressing into his shin, he alleges that medical staff simply “tape[d] a rubber heal under the cast to
lift it off of and from touching the ground.” Id. (Second Am. Compl. ¶ 36).
One month later, plaintiff saw an outside orthopedist, Dr. Kenneth Wertzberger, and
Physician’s Assistant Shane Alford. Id. (Second Am. Compl. ¶ 37); see also Doc. 77-3 at 2–3
(OrthoWertz treatment notes, dated February 26, 2016). Dr. Wertzberger took x-rays of
plaintiff’s foot, which showed that the fracture remained unchanged from the x-ray taken right

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after the injury. See Doc. 77-4 at 4 (Wertzberger Decl. ¶ 5.d.i.); see also Doc. 77-7 at 3–4
(Bureau of Prisons Health Services Notes, dated Mar. 9, 2016). At that time, a prison physician
removed the old cast and put plaintiff’s foot in a new cast. Doc. 36 at 10 (Second Am. Compl. ¶
38); Doc. 77-7 at 3–4 (Bureau of Prisons Health Services Notes, dated Mar. 9, 2016).
One month later, in April 2016, x-rays showed plaintiff’s foot was beginning to heal.
Doc. 77-4 at 4 (Wertzberger Decl. ¶ 5.e.i.). So, physicians removed the cast and placed plaintiff
in a walking boot. Doc. 36 at 11 (Second Am. Compl. ¶ 39). X-rays taken in May and June
2016 showed continued healing. Doc. 77-4 at 4 (Wertzberger Decl. ¶¶ 5.f.i.–5.h.i.). During this
period, plaintiff alleges that Dr. Wertzberger directed him to begin weaning himself off the
walking boot. Doc. 36 at 11 (Second Am. Compl. ¶ 40). And by July 2016, plaintiff alleges Dr.
Wertzberger told him he no longer needed the walking boot. Id. (Second Am. Compl. ¶ 41).
In short, plaintiff alleges that but for the negligence by medical staff at the prison, his
broken foot would’ve healed twice as fast. He asserts that medical staff was negligent by
refusing to see him immediately after he broke his foot, by allowing him to walk around on a
broken foot for three days, and by incorrectly casting his foot and then refusing to correct it when
he complained. See id. (Second Am. Compl. ¶ 41).
II.

Legal Standard
Summary judgment is appropriate when the moving party demonstrates “no genuine

dispute” about “any material fact” and that the moving party is “entitled to judgment as a matter
of law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
When the court applies this standard, it views the evidence and draws reasonable inferences in
the light most favorable to the non-moving party. Scott v. Harris, 550 U.S. 372, 378 (2007). But
the court “need not make unreasonable inferences or adopt one party’s version of the facts if the

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record doesn’t support it.” Harte v. Bd. of Comm’rs, 864 F.3d 1154, 1173 (10th Cir. 2017). An
issue of “material fact is ‘genuine’ . . . if the evidence is such that a reasonable jury could return
a verdict for the nonmoving party” on the issue. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986). And, an issue of fact is “material” if it can “affect the outcome of the suit under the
governing law[.]” Id.
The party moving for summary judgment bears the initial burden of showing “the basis
for its motion[.]” Celotex Corp., 477 U.S. at 323. A summary judgment movant can satisfy this
burden by demonstrating “that there is an absence of evidence to support the nonmoving party’s
case.” Id. at 325. If the moving party satisfies this initial burden, the non-moving party “must
set forth specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 250
(quotation cleaned up). To satisfy this requirement, the nonmoving party must “go beyond the
pleadings and by [his] own affidavits, or by the depositions, answers to interrogatories, and
admissions on file, designate specific facts showing that there is a genuine issue for trial.”
Celotex Corp., 477 U.S. at 324 (quotation cleaned up). When deciding whether the parties have
shouldered their summary judgment burdens, the court’s “function is not . . . to weigh the
evidence and determine the truth of the matter but to determine whether there is a genuine issue
for trial.” Anderson, 477 U.S. at 249.
III.

Analysis
“The Federal Tort Claims Act (FTCA) allows a plaintiff to bring certain state-law tort

suits against the Federal Government.” Brownback v. King, 141 S. Ct. 740, 745 (2021). “Under
the FTCA, Congress granted a limited waiver of sovereign immunity by making the Federal
Government liable to the same extent as a private party for certain torts of federal employees.”
Ohlsen v. United States, 998 F.3d 1143, 1153 (10th Cir. 2021) (quotation cleaned up). The

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statute provides that the United States may face liability for injuries “caused by the negligent or
wrongful act or omission of any employee of the Government while acting within the scope of
his office or employment, under circumstances where the United States, if a private person,
would be liable to the claimant in accordance with the law of the place where the act or omission
occurred.” 28 U.S.C. § 1346(b)(1). Because “[s]tate substantive law applies to suits brought
against the United States under the FTCA[,]” the court applies Kansas law2 to plaintiff’s FTCA
claim. Hill v. SmithKline Beecham Corp., 393 F.3d 1111, 1117 (10th Cir. 2004).
Defendant, the United States, argues that it deserves summary judgment against
plaintiff’s medical malpractice claim because plaintiff has failed to satisfy the requirements for
that claim under Kansas law. Specifically, defendant argues that plaintiff (1) fails to provide
supporting expert testimony, as Kansas law requires, and (2) fails to demonstrate that his case
falls within the narrow “common knowledge” or res ipsa loquitur exceptions to the expert
testimony requirement. Defendant’s right on both points. And so, the court grants defendant
summary judgment against plaintiff’s claim.
A.

Plaintiff Fails to Support His Claim with Expert Testimony

Under Kansas law, a medical malpractice plaintiff must prove:
(1) The health care provider owed the patient a duty of care and was required to
meet or exceed a certain standard of care to protect the patient from injury; (2) the
provider breached this duty or deviated from the applicable standard of care; (3) the
patient was injured; and (4) the injury proximately resulted from the breach of the
standard of care.
Drouhard-Nordhus v. Rosenquist, 345 P.3d 281, 286 (Kan. 2015).

2

For tort claims, Kansas applies “the doctrine of lex loci delicti, meaning the law of the place
where the tort was committed or where the wrong occurred.” Swimwear Sol., Inc. v. Orlando Bathing
Suit, LLC, 309 F. Supp. 3d 1022, 1031 (D. Kan. 2018) (quotation cleaned up). “Where the wrong
occurred is generally considered to be the place where the injury was suffered.” Id. Plaintiff sustained
the injury to his right foot and received allegedly negligent treatment at the United States Penitentiary in
Leavenworth, Kansas. So, Kansas law applies.

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“The plaintiff in a medical malpractice case bears the burden of showing not only the
doctor’s negligence, but that the negligence caused the injury.” Hare v. Wendler, 949 P.2d 1141,
1146 (Kan. 1997) (quotation cleaned up). “Except where the lack of reasonable care or the
existence of proximate cause is apparent to the average layman from common knowledge or
experience, expert testimony is required in medical malpractice cases to establish the accepted
standard of care and to prove causation.” Id. (quotation cleaned up). At the summary judgment
stage, plaintiff must show that he has adduced evidence that could permit him to carry this trial
burden. See Drouhard-Nordhus, 345 P.3d at 288 (affirming summary judgment against
plaintiff’s medical malpractice claim because plaintiff “fail[ed] to come forward with evidence
that the patient would not have died but for [defendant’s] alleged breach of the standard of
care”); see also Hare, 949 P.2d at 1148 (affirming summary judgment against plaintiff’s medical
malpractice claim because of a “fundamental problem” i.e., “his lack of expert medical causation
evidence”).
Here, plaintiff has designated three experts who, he contends, could provide sufficient
testimony for his claims to survive summary judgment: (1) Dr. Carolyn Hettrich, (2) Dr. Ken
Wertzberger; and (3) Physician’s Assistant Shane Alford. See Doc. 69 (Pl.’s Rule 26(a)(2)
Disclosure). Plaintiff asserts that all three could testify that prison medical staff failed to provide
adequate care, thus prolonging the healing process for his broken foot. But plaintiff has failed to
show that these three experts would help carry his burden under Kansas law. Two reasons
supports this conclusion.
First, none of the witnesses could testify as experts at trial. If a party has “retained or
specially employed [a witness] to provide expert testimony in the case[,]” then the party must
provide a written report from that expert witness. Fed. R. Civ. P. 26(a)(2)(B). That report must

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contain the witness’s opinions, the facts and data supporting those opinions, and the witness’s
qualifications to form those opinions, among other things. Id. And, the party offering a retained
expert’s testimony must provide that report when it discloses its expert witnesses. Id. Plaintiff
didn’t satisfy any of these requirements. When he disclosed his three expert witnesses, he failed
to provide a written report from any of them. See Doc. 69 (Pl.’s Rule 26(a)(2) Disclosure). Nor
has he done so since. Defendant has advised that plaintiff hasn’t provided an expert report for
any of his designated witnesses. See Doc. 77 at 3–4. And plaintiff implicitly has conceded as
much. See Doc. 84 at 3 (“[T]he government has no idea [p]laintiff[’]s intended line of
questioning or what plaintiff intends these experts to testify regarding the facts material to the
issues presented”). As a result, plaintiff can’t use expert testimony to establish the applicable
standard of care or prove causation.
Second, plaintiff fails to show how any of his designated witnesses would provide
favorable testimony at trial. While the witnesses couldn’t testify as experts at trial, as treating
physicians (and assistants), they still could testify to their personal knowledge and observations
about plaintiff’s injuries. See Davoll v. Webb, 194 F.3d 1116, 1138 (10th Cir. 1999) (“A treating
physician is not considered an expert witness if he or she testifies about observations based on
personal knowledge, including the treatment of the party.”); Hildebrand v. Sunbeam Prods., Inc.,
396 F. Supp. 2d 1241, 1250 (D. Kan. 2005) (explaining that “treating physicians” can testify
about “causation, diagnosis, prognosis, and other opinions arising out of the treatment without
any expert report”). Even so, plaintiff doesn’t explain how any of the witnesses’ testimony
would help carry his burden. Plaintiff concedes that Dr. Hettrich didn’t treat his broken right
foot that’s at issue here. Doc. 84 at 3; see also Doc. 77-5 (Dr. Hettrich’s treatment notes of
plaintiff’s elbow pain three years after plaintiff broke his right foot). So, Dr. Hettrich couldn’t

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provide testimony based on personal knowledge of treating plaintiff’s foot. And, for Dr.
Wertzberger and P.A. Alford, plaintiff has failed to provide “a summary of the facts and opinions
to which the witness is expected to testify[,]” as required by Fed. R. Civ. P. 26(a)(2)(C).
Plaintiff merely asserts that both Dr. Wertzberger and P.A. Alford “can testify regarding the
subject matter of this case” and “can testify regarding the evidence supporting plaintiff[’]s
claims.” Doc. 69 at 1–2.
Even putting aside those conclusory assertions, the record reflects that Dr. Wertzberger’s
testimony wouldn’t help plaintiff establish that defendant’s alleged negligence caused his injury.
Defendant has provided a declaration from Dr. Wertzberger, where he testified that the type of
fracture plaintiff sustained in his right foot “heals 99.9% of the time no matter how you treat it.”
Doc. 77-4 at 3 (Wertzberger Decl. ¶ 5.c.i.); see also id. (Wertzberger Decl. ¶ 5.a.) (declaring that
he “cannot state whether [plaintiff] was treated with callousness and disregard” because “there
are medical problems that don’t matter how they are treated, they are going to be okay by the
natural course of things”). Crucially, Dr. Wertzberger also testified that plaintiff’s broken right
foot healed “in the usual timeframe.” Id. at 4 (Wertzberger Decl. ¶ 5.i.). The summary judgment
record doesn’t contain any testimony from P.A. Alford, and plaintiff hasn’t offered any evidence
to suggest that his testimony would differ from Dr. Wertzberger’s.
In sum, plaintiff has failed to adduce expert testimony capable of supporting his medical
malpractice claim, as Kansas law requires. So, plaintiff only has one narrow pathway to
shoulder his burden. The court turns to that narrow path next, in Part III.B.
B.

Plaintiff Fails to Satisfy the “Common Knowledge” or Res Ipsa Loquitur
Exceptions

Recognizing that he can’t provide expert testimony to establish the standard of care and
to prove causation, plaintiff maintains that he still could prove his claim at trial even without
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such testimony. He contends that “the doctrine of res ipsa loquitur” and “the common
knowledge exception” apply to his case. Doc. 84 at 4. The court disagrees.
Plaintiff’s right about the abstract proposition that Kansas law does not require expert
testimony for every medical malpractice claim. But the exception to the expert rule applies only
when a defendant’s conduct is so obviously negligent that jurors could conclude from their
“common knowledge” that a defendant has breached an accepted standard of care that has caused
plaintiff’s injury. See Hare, 949 P.2d at 1147. This common knowledge exception applies only
when “the lack of reasonable care or the existence of causation is apparent to the average layman
from common knowledge or experience.” Watkins v. McAllister, 59 P.3d 1021, 1023 (Kan. Ct.
App. 2002). Whether the exception applies is a question of law for the court to decide. Perkins
v. Susan B. Allen Mem’l Hosp., 146 P.3d 1102, 1105 (Kan. Ct. App. 2006). The “application of
the common knowledge exception is extremely limited” to patently obvious breaches of the
standard of care. Munoz v. Clark, 199 P.3d 1283, 1288–89 (Kan. Ct. App. 2009) (listing cases
where a “surgeon operat[ed] on the wrong limb” or where “a patient is dropped from a table” as
examples where the common knowledge exception applied); Perkins, 146 P.3d at 1106
(collecting more common knowledge exception cases, like when a physician left a sponge inside
a patient after surgery, and when a “surgeon removed 60% of the wrong vertebral disc”);
Schwartz v. Abay, 995 P.2d 878, 880 (Kan. Ct. App. 1999) (collecting more cases where a nurse
failed to call a doctor when a woman went into labor and suffered severe complications and
where a “physician left a plastic tube in patient’s throat for 36 hours after surgery”).
Kansas law recognizes a second exception to the expert rule. This second exception
applies under “the doctrine of res ipsa loquitur” which applies “in a medical malpractice action
only where a layman is able to say as a matter of common knowledge and observation, or from

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the evidence can draw an inference, that the consequences of professional treatment were not
such as ordinarily would have followed if due care had been exercised.” Funke v. Fieldman, 512
P.2d 539, 550 (Kan. 1973); see also Frans v. Gausman, 6 P.3d 432, 439 (Kan. Ct. App. 2000)
(“[R]es ipsa doctrine is seldom applicable in actions for damages by patients against
physicians.”). As the Kansas Supreme Court has explained,
Three conditions must be met for the doctrine of res ipsa loquitur to apply. First,
the thing or instrumentality causing the injury or damage must be within the
exclusive control of the defendant. Second, the injury must be of the kind that
ordinarily would not occur in the absence of someone’s negligence. Third, the
injury must not be due to the contributory negligence of plaintiff.
Savina v. Sterling Drug, Inc., 795 P.2d 915, 933 (Kan. 1990).
In short, in Kansas law the “doctrines of ‘common knowledge’ and ‘res ipsa loquitur’ are
applied infrequently and are limited to situations in which it would be apparent to a layperson
that an injury or an outcome would not have occurred if due care had been exercised.” Warner v.
Floyd, No. 16-4143-SAC-KGS, 2018 WL 742359, at *3 (D. Kan. Feb. 7, 2018). And because
the two exceptions substantially overlap, if plaintiffs fail to satisfy one, they usually fail to
satisfy the other. See Esposito v. United States, 165 F. App’x 671, 676 (10th Cir. 2006)
(applying Kansas law and concluding that, because common knowledge exception didn’t apply,
“res ipsa loquitur [was] unavailable as well”).
Here, neither exception applies. Begin with the common knowledge exception. Plaintiff
contends it’s “common knowledge that a broken right foot is supposed to be properly cast.”
Doc. 84 at 4. While the court agrees with plaintiff at a very high level of generality, this
argument won’t suffice to satisfy the common knowledge exception. The proper standard of
care (i.e., how to cast a broken foot) isn’t within a lay person’s common knowledge. In other
words, the proper standard of care isn’t so obvious that no expert testimony is needed to discern
the standard. See Robles v. United States, No. CV 15-4864-KHV, 2017 WL 364598, at *6 (D.
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Kan. Jan. 25, 2017) (declining to apply the common knowledge exception because “the care and
treatment of plaintiff’s wrist injury is not something within the common knowledge of the jury”),
aff’d, 703 F. App’x 652, 655 (10th Cir. 2017) (reasoning that it was “not clear without expert
testimony whether an initial misdiagnosis of a patient’s wrist pain as being caused by a sprain as
opposed to a ruptured tendon is ‘patently bad’ care”).
Likewise, here, causation isn’t so obvious that it excuses the requirement for expert
testimony. Plaintiff contends that but for defendant’s negligence, his foot would’ve healed in
three months instead of six. But the court finds that the proper healing timeframe for a broken
foot isn’t within a lay person’s common knowledge. And, in any event, the only evidence in the
summary judgment record about the standard recovery period for a broken foot rejects—not
supports—plaintiff’s claim. Dr. Wertzberger testified that plaintiff’s broken foot healed “in the
usual timeframe.” Doc. 77-4 at 4 (Wertzberger Decl. ¶ 5.i.). Thus, the court concludes the
common knowledge exception doesn’t apply to the causation issue either.
Given that conclusion, the res ipsa loquitur exception also can’t apply here. See Esposito,
165 F. App’x at 676 (applying Kansas law and concluding that, because the common knowledge
exception didn’t apply, “res ipsa loquitur [was] unavailable as well”). To be sure, the record
suggests that plaintiff’s foot didn’t begin to heal until a prison physician re-cast his foot one
month after his initial injury and treatment. But for that one-month period, plaintiff’s cast—the
thing plaintiff asserts caused him injury or damage—wasn’t within defendant’s exclusive
control, as required for the res ipsa loquitur exception to apply. Savina, 795 P.2d at 933.
Plaintiff himself concedes that he placed weight on the cast, against prison medical staff’s
instructions to him. See Doc. 36 at 10 (Second Am. Compl. ¶ 34) (“Although [plaintiff] was
directed to not bear any weight on the cast, no medical staff or any Bureau official provided

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[plaintiff] with the means of doing so. Although [plaintiff] was provided crutches, he must walk
back and forth to medical and the chow hall to eat.” (emphasis added)).
Also, defendant argues that any prolonged period of healing was due to plaintiff’s
contributory negligence in placing weight on the cast. That causation dispute alone precludes the
court from applying the res ipsa loquitur exception. See Frans, 6 P.3d at 439 (refusing to apply
res ipsa loquitur where the “identity of the cause of the injury was hotly contested” and it was
possible that “plaintiffs were negligent in some degree”); see also Hervey v. United States, No.
19-4033-SAC-ADM, 2020 WL 1809748, at *4 (D. Kan. Jan. 24, 2020) (declining to apply res
ipsa loquitur where “multiple factors outside the control of [treating physician] may have had an
impact upon plaintiff’s mental health and the problems plaintiff suffered may have occurred for
reasons other than [physician’s] negligence”).
In sum, the common knowledge and res ipsa loquitur exceptions rarely apply. And
plaintiff has failed to establish that his case is one of those rare cases where one of the exceptions
apply. Without this escape hatch, the requirement for expert testimony remains a requirement
for plaintiff’s case to survive summary judgment. Plaintiff hasn’t provided the requisite expert
testimony to support his medical malpractice claim. So, defendant is entitled to summary
judgment against the claim. Roesch v. Clarke, 861 F. Supp. 986, 993 (D. Kan. 1994) (“Without
expert medical testimony that defendant was negligent, the court must grant defendant summary
judgment.”).
IV.

Conclusion
For those reasons, the court grants defendant summary judgment against plaintiff’s

medical malpractice claim.

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IT IS THEREFORE ORDERED BY THE COURT THAT defendant’s Motion for
Summary Judgment (Doc. 76) is granted. Because this ruling concludes all claims asserted in
the case, the court directs the Clerk to enter a final judgment and close the case.
IT IS SO ORDERED.
Dated this 10th day of May, 2022, at Kansas City, Kansas.
s/ Daniel D. Crabtree______
Daniel D. Crabtree
United States District Judge

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