Christensen v. United States of America et al

Filing 47

MEMORANDUM OPINION & ORDER: 1) 44 Motion for Physical Examination by Podiatrist, MOTION to Appoint Podiatrist as Expert Witness, is DENIED. 2) 26 MOTION to Dismiss or in the Alternative MOTION for Summary Judgment is GRANTED. 3) 1 Complaint is DISMISSED WITH PREJUDICE. 4) Court will enter a judgment w this Order. 5) Matter is STRICKEN from the active docket. Signed by Judge Karen K. Caldwell on 4/16/2014.(SCD)cc: COR,Pro Se Pla(via US Mail)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
HERBERT SAMUEL
JR.,
Plaintiff,

CHRISTENSEN,
Civil No. 5: 11-321-KKC
MEMORANDUM OPINION
AND ORDER

v.
UNITED STATES OF AMERICA, et al.,
Defendants.

*** *** *** ***
This matter is before the Court upon the motion of the United States to dismiss the
complaint, or in the alternative for summary judgment. [R. 26] Plaintiff Herbert Samuel
Christensen, Jr. has responded to the motion [R. 34] to which the United States has replied.
[R. 42] Christensen has also filed a motion requesting the appointment of a podiatrist to
perform a physical examination and to provide expert testimony. [R. 44] The United States
has filed its response to his motion [R. 45] to which Christensen has replied. [R. 46] These
matters are therefore ripe for adjudication.
I
Christensen is an inmate formerly confined at the Federal Medical Center in
Lexington, Kentucky.

Proceeding without an attorney, Christensen filed a complaint

asserting a number of claims arising out of his medical treatment at the prison, as well as his
invocation of the prison’s grievance system and his efforts to obtain copies of certain medical
records. [R. 1] On August 26, 2013, the Court conducted the screening required by 28 U.S.C.
§§ 1915(e)(2), 1915A, and dismissed all but one of those claims for failure to state a claim. [R.
12] Following service of process, the United States has filed a motion to dismiss the remaining
claim, Christensen’s claim under the Federal Tort Claims Act, 28 U.S.C. § 2671-80 (“FTCA”)
that the denial of composite toe work boots constituted medical negligence. [R. 26]

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In his complaint, Christensen alleged that he has “had trouble with his feet” since
August 25, 2005, which he attributes primarily to “his gait and step being affected from an old
ankle injury.” He also stated that in August and September 2005, a skin culture revealed that
he had a staph infection on his foot, which took more than one course of antibiotics to resolve.
[R. 1, pp. 32-33] On December 16, 2009, Christensen requested that his feet be checked to
determine whether he needed medical shoes, a soft shoe pass, or insoles for his feet.
Christensen indicated that an orthotic foot specialist examined him and, on April 28, 2010, his
feet were measured for composite toe work boots, at which point a request was placed for their
manufacture and purchase.

[R. 28-9, p. 13] When his boots had not arrived within two

months, on July 1, 2010, Christensen inquired as to when he would receive them. Christensen
indicates that he was told that FMC’s Clinical Director, Dr. Growse, had denied the request.
[R. 1, pp. 33-34]
On February 21, 2011, Christensen mailed a Standard Form 95 to the BOP seeking
administrative settlement of his claim that the denial of his “recommended medical boots”
constituted negligence and that as a result he had suffered sores and pain. [R. 11-4, pp. 1-6]
The BOP denied that claim on June 29, 2011. [R. 11-4, pp. 8-9]
The United States indicates that in response to a prison grievance Christensen filed on
August 7, 2010, regarding this issue, the warden noted that his medical records did not show
past subjective complaints of foot pain or any objective medical data indicating the need for
custom medical boots, such as a foot deformity or an orthopedic problem.

[R. 28, p. 6]

Further, x-rays performed on July 6, 2010, revealed only minor arthritis in Christensen’s left
big toe.

[R. 28-9, p. 20]

The Clinical Director concluded from this information that

Christensen did not meet the criteria for custom orthotics. [R. 28-5, pp. 2, 4] Specifically, Dr.
Growse denied the request as medically unnecessary because Christensen’s symptoms did not
warrant the creation of “custom boots,” and because “composite toe boots” – which are

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manufactured like ordinary steel toe boots except that the cap is made of a lighter plastic or
composite material – would not have addressed any of his medical symptoms.

[R. 42-1,

Growse Decl. at ¶¶4-6]
The defendant argues that subsequent medical records from 2010 through 2012 only
reinforced the prior conclusion that composite toe work boots were not medically necessary. At
a November 29, 2010, medical visit, Christensen reported that he had been exercising and was
not experiencing swelling in his legs or feet.

Christensen similarly reported exercising

without difficulty or pain in his foot or ankle at medical appointments on January 5, 2011, and
April 13, 2011. [R. 28-7, Brenner Decl. at pp. 3-4] Christensen did report tenderness in the
second toe of his left foot during a February 17, 2012, examination, which was diagnosed as
degenerative joint disease. Christensen was referred to physical therapy for treatment and
provided with a pair of arch supports to alleviate any discomfort. Id. at p. 4.
II
In its motion, the United States contends that it is entitled to summary judgment
because Christensen has failed to provide expert testimony to establish the duty of care and a
breach of it, and because Christensen has failed to establish any actual injury resulting from
the refusal to provide him with composite toe boots.1 [R. 28, pp. 13-22, pp. 22-24]
The Court must treat the United States’ motion to dismiss the complaint as a motion
for summary judgment under Rule 56 because it has attached and relied upon documents and
declarations extrinsic to the pleadings in support of it. Fed. R. Civ. P. 12(d); Wysocki v. Int’l
Bus. Mach. Corp., 607 F.3d 1102, 1104 (6th Cir. 2010). A motion under Rule 56 challenges the
viability of the another party’s claim by asserting that at least one essential element of that

It is unclear whether the United States is also arguing that Christensen failed to exhaust his administrative
remedies. [compare R. 42, pp. 7-8 with R. 45, p. 1 n.1] Plaintiff’s only surviving claim arises under the FTCA,
which has its own statutory exhaustion requirement, 28 U.S.C. § 2675(a). This provision, rather than the general
one found in 28 U.S.C. § 1997e(a), is the sole exhaustion requirement that must be satisfied prior to filing suit
under the FTCA. Cf. Macleod v. Grajales, No. 6:13-CV-188-DCR, 2014 WL 1385249, at *3 (E.D. Ky. Apr. 8, 2014).
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claim is not supported by legally-sufficient evidence. Fed. R. Civ. P. 56(a); Celotex Corp. v.
Catrett, 477 U.S. 317, 324-25 (1986).

If the moving party demonstrates that there is no

genuine dispute as to any material fact and that she is entitled to a judgment as a matter of
law, she is entitled to summary judgment. Kand Medical, Inc. v. Freund Medical Products,
Inc., 963 F.2d 125, 127 (6th Cir. 1992).
The moving party does not need her own evidence to support this assertion, but need
only point to the absence of evidence to support the claim. Turner v. City of Taylor, 412 F.3d
629, 638 (6th Cir. 2005). The responding party cannot rely upon allegations in the pleadings,
but must point to evidence of record in affidavits, depositions, and written discovery which
demonstrates that a factual question remain for trial. Hunley v. DuPont Auto, 341 F.3d 491,
496 (6th Cir. 2003); United States v. WRW Corp., 986 F.2d 138, 143 (6th Cir. 1993) (“A trial
court is not required to speculate on which portion of the record the non-moving party relies,
nor is there an obligation to ‘wade through’ the record for specific facts.”).
The court reviews all of the evidence presented by the parties in a light most favorable
to the responding party, with the benefit of any reasonable factual inferences which can be
drawn in his favor. Harbin-Bey v. Rutter, 420 F.3d 571, 575 (6th Cir. 2005). The court must
grant summary judgment if the evidence would not support a jury verdict for the responding
party with respect to at least one essential element of his claim. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 251 (1986). If the applicable substantive law requires the responding party
to meet a higher burden of proof, his evidence must be sufficient to sustain a jury’s verdict in
his favor in light of that heightened burden of proof at trial. Harvey v. Hollenback, 113 F.3d
639, 642 (6th Cir. 1997); Moore, Owen, Thomas & Co. v. Coffey, 992 F.2d 1439, 1444 (6th Cir.
1993).
The FTCA renders the United States liable in tort for certain damages caused by the
negligence of any employee of the government “if a private person, would be liable to the

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claimant in accordance with the law of the place where the act or omission occurred.” 28
U.S.C. § 1346(b). Thus if a government employee’s conduct in Kentucky would render him or
her liable for negligence under Kentucky law, the United States may be held accountable in a
tort action.
Because Christensen alleges that Dr. Growse’s refusal to provide him with composite
toe work boots was medically negligent, the Court looks to Kentucky’s law of negligence to
determine whether he has presented the essential components of his claim.

28 U.S.C. §

1346(b); Rayonier Inc. v. United States, 352 U.S. 315, 318 (1957). Under Kentucky law, to
establish a prima facie case of medical malpractice a plaintiff must demonstrate “(1) the
standard of care recognized by the medical community as applicable to the particular
defendant, (2) that the defendant departed from that standard, and (3) that the defendant’s
departure was a proximate cause of the plaintiff’s injuries.”

Heavrin v. Jones, 2003 WL

21673958, at *1 (Ky. App. 2003).
Except in rare circumstances, “the plaintiff ... is required to present expert testimony
that establishes (1) the standard of skill expected of a reasonably competent medical
practitioner and (2) that the alleged negligence proximately caused the injury.” Andrew v.
Begley, 203 S.W.3d 165, 170 (Ky. App. 2006); see also Blankenship v. Collier, 302 S.W.3d 665,
675 (Ky. 2012) (“[A] plaintiff bringing a typical medical malpractice case is required by law to
put forth expert testimony to inform the jury of the applicable medical standard of care, any
breach of that standard and the resulting injury.”). The plaintiff can provide evidence of the
applicable standard of care from a variety of sources. For instance, “the necessary expert
testimony may be supplied by the defendant’s admissions during discovery, or through
medical evidence obtained from other treating physicians.” Vance By and Through Hammons
v. United States, 90 F.3d 1145, 1148 (6th Cir. 1996) (citing Perkins v. Hausladen, 828 S.W.2d
652, 655-56 (Ky. 1992)).

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Kentucky does recognize a “common knowledge” exception, obviating the need for
expert testimony to establish the standard of care “where the common knowledge or
experience of laymen is extensive enough to recognize or to infer negligence from the facts.”
However, the exception is very narrow, and is generally limited to circumstances involving
obvious error by the physician, such as where a surgeon amputates the wrong limb or leaves a
foreign object in the body. Rose v. United States, No. 09-104-ART, 2011 WL 839548, at *2 (E.
D. Ky. Mar. 7, 2011).

The common knowledge of a layman is not sufficient to make a

determination regarding the proper treatment of Christensen’s medical conditions, rendering
this exception inapplicable to plaintiff’s claims.

Cf. Blankenship, 302 S.W.3d at 670-71;

Matthews v. Robinson, 52 F. App’x 808, 810 (6th Cir. 2002) (holding that district court
properly dismissed plaintiff’s claim under the FTCA that BOP medical staff failed to provide
adequate medical care by prescribing special shoes for his deformed feet where plaintiff did
not provide expert testimony to establish deviation below standard of care and medical care
provided was not so obviously negligent to fall within the province of a layman to determine).
Because Christensen has acknowledged the need for expert testimony to support his
claim that the medical care given by the defendants fell below the applicable standard of care
and caused his injuries but has failed to provide it, he has not established a prima facie case of
medical negligence, and summary judgment is warranted. Blankenship, 302 S.W.3d at 671;
Andrew, 203 S.W.3d at 170 (“To survive a motion for summary judgment in a medical
malpractice case in which a medical expert is required, the plaintiff must produce expert
evidence or summary judgment is proper.”); see also Baylis v. Lourdes Hosp., Inc., 805 S.W.2d
122, 124 (Ky. 1991) (“It is an accepted principle that in most medical negligence cases, proof of
causation requires the testimony of an expert witness because the nature of the inquiry is
such that jurors are not competent to draw their own conclusions from the evidence without
the aid of such expert testimony.”).

6

In his response to the United States’ motion for summary judgment, Christensen
indicated that because of his poverty, he cannot afford a podiatrist. [R. 34-1, p. 4] And in a
document filed after completion of the briefing in this matter, citing Federal Rule of Civil
Procedure 35 and Federal Rule of Evidence 706, Christensen requested that the Court appoint
a podiatrist to examine his feet and testify to establish the standard of care, an expense which
he indicated that he would pay for in “reasonable installments” after his release from prison.
[R. 44]
The United States correctly responds that neither rule warrants the appointment of an
expert at the expense of the opposing party or the Court. Rule 35 is a discovery tool designed
to permit an opposing party to conduct a physical or mental examination of the other party;
discovery is not required for a party to obtain such an examination of him or herself. Moore v.
Tanner, No. 07-10442, 2007 WL 3203648, at *3 (E.D. Mich. Oct. 31, 2007) (“[Rule 35] was not
drafted with the intent that it be utilized by a Plaintiff wishing to have himself/herself
examined. Parties, if they are free of incarceration, can arrange for a medical or psychiatric
evaluation without a court order. The rule also anticipates that the party seeking the
examination pay for it. This Court has no funds for such purposes.”); Smith v. Carroll, 602 F.
Supp. 2d 521, 525-26 (D. Del. 2009) (“Rule 35, however, does not vest the court with authority
to appoint an expert to examine a party wishing an examination of himself.”); Brown v. United
States, 74 F. App’x 611, 614-15 (7th Cir. 2003) (holding that district court’s refusal to appoint
expert to examine plaintiff and establish standard of care in FTCA action did not violate
plaintiff’s rights to due process or of access to the courts). Likewise, Rule 706 permits the
Court to appoint an expert witness to aid the Court, not a party, and requires his or her
compensation to be taxed as a cost to the parties, not paid by the Court. Fed. R. Evid. 706(b),
(c). See Colton v. Scutt, No. 10-CV-13073, 2012 WL 5383115, at *7 (E.D. Mich. Nov. 1, 2012)
(citing Dodson v. Wilkinson, 304 F. App’x 434, 442 (6th Cir. 2008)), aff’d, Colton v. Cohen, 2013

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WL 3724835, at *2 (E.D. Mich. July 15, 2013). Because indigent plaintiffs must still bear the
costs incident to litigation, including the payment of witness fees, Brown, 74 F. App’x at 61415, Christensen may not shift that expense to an opposing party or the Court.
Accordingly, IT IS ORDERED that:
1.

Christensen’s Request for Physical Examination by Podiatrist and Court-

Appointed Testimony by Podiatrist Expert [R. 44] is DENIED.
2.

The United States’ Motion to Dismiss the Complaint, or in the Alternative for

Summary Judgment [R. 26] is GRANTED.
3.

Christensen’s complaint [R. 1] is DISMISSED WITH PREJUDICE.

4.

The Court will enter a judgment contemporaneously with this Order.

5.

This matter is STRICKEN from the active docket.

Entered April 16, 2014.

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