Buffman v. United States of America et al

Filing 84

OPINION and ORDER Denying 82 Objections to Report and Recommendation, Adopting in Part 81 Report and Recommendation, and Granting 78 Motion for Summary Judgment. Signed by District Judge Judith E. Levy. (SBur)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Emmett Buffman,
Plaintiff,
v.

Case No. 13-cv-14024
Judith E. Levy
United States District Judge

United States of America,
Mag. Judge Mona K. Majzoub
Defendant.
________________________________/
OPINION AND ORDER DENYING OBJECTIONS TO REPORT
AND RECOMMENDATION [82], ADOPTING IN PART REPORT
AND RECOMMENDATION [81], AND GRANTING MOTION FOR
SUMMARY JUDGMENT [78]
On September 19, 2013, Emmett Buffman filed a complaint against
the United States of America under the Federal Tort Claims Act, alleging
federal employees gave him insufficient medical care while he was
incarcerated at Milan Federal Correctional Institution (“FCI Milan”).
(Dkt. 1.)1

On May 20, 2016, defendant filed a motion for summary

judgment (Dkt. 78), and the Magistrate Judge issued a Report and

Plaintiff also named other defendants and alleged other claims that have since been
dismissed.

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Recommendation (“R&R”) on January 27, 2017, with a recommendation
to grant the motion. (Dkt. 81.) On February 14, 2017, plaintiff filed
objections to the R&R. (Dkt. 82.)
For the reasons set forth below, plaintiff’s objections are denied, the
R&R is adopted in part, and defendant’s motion for summary judgment
is granted.
I.

Background
Plaintiff’s complaint arises from what he characterizes as negligent

medical treatment for two boils, which allegedly led him to require
emergency surgery. (Dkt. 1 at 5–6.) After seeking treatment for the two
boils, he alleges former defendants Restituto Pomaloy, Stephen Gidal,
and William Malatinsky—dismissed on January 6, 2015—“acted with
deliberate indifference, negligence, Abuse of Process, Acts, Errors,
Omission, and other tort violations which were intentional” by “failing to
follow industry practice norms, as well as the BOP Program Statement
regarding Patient Care.” (Dkt. 1 at 6–7.) Mr. Pomaloy and Mr. Gidal
were employed as Mid-Level Practitioners by the Bureau of Prisons, a
role “analogous to physician’s assistants,” and were under the
supervision of Dr. Malatinsky, a licensed physician. (See Dkt. 80 at 7–8.)
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On February 13, 2013, plaintiff sought treatment for a boil and
“body aches, chills, weakness, lightheadedness, and a cough.” (Dkt. 82 at
8.) Mr. Pomaloy diagnosed plaintiff with an acute respiratory infection
and also referred him to an optometrist for further care related to a white
spot on plaintiff’s eye. (Id.) Plaintiff alleges his boil was never treated
and he was given no instructions regarding his care. (Id.) After being
discharged, plaintiff allegedly returned to the Health Services
Department at FCI Milan three times between that day and February
20, 2013, and wrote to Dr. Malatinsky to request treatment for the boils.
(Dkt. 79-5.)
On February 20, 2013, plaintiff returned to the Health Services
Department and was seen by Mr. Gidel, who wrote that plaintiff had been
seen “1 week ago for a boil” and it had “gotten a lot worse.” (Dkt. 79-4 at
1.)

Mr. Gidel discharged plaintiff with an order that he be given

sulfamethoxazole and acetaminophen, and that he have a “daily dressing
change and wound check.” (Id. at 2.) Plaintiff was seen again the next
day by Mr. Gidel, who requested lab tests and instructions to “return
immediately if condition worsens” and “follow-up in 2-4 hours.” (Dkt. 79-

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6 at 2.) The order also requested that Dr. Malatinsky review the lab
results. (Id.)
On February 22, 2013, plaintiff was transferred to St. Joseph Mercy
Hospital where he allegedly underwent surgery for the infectious cores
at the sites of the boils, and where he convalesced until February 26,
2013. (Dkt. 1 at 20.)
Following these events, plaintiff filed this complaint pro se, arguing
defendants United States of America, Restituto Pomaloy, Stephen Gidal,
William Malatinsky, Warden J.A. Terris, and Administrator Zesto were
liable under the Federal Tort Claims Act and for constitutional violations
under the Bivens doctrine. (See generally Dkt. 1.) On January 6, 2015,
the Court dismissed plaintiff’s claims against the individual defendants
without prejudice for failure to exhaust administrative remedies. (Dkt.
51.)2

In the response to defendant’s motion for summary judgment, plaintiff also
requested that the Court permit him to reinstate the claims that were previously
dismissed without prejudice for failure to exhaust his administrative remedies. (Dkt.
79 at 10.) The Magistrate Judge rejected the request in the R&R (Dkt. 81 at 8 n.1)
and plaintiff has not objected to this portion. Accordingly, and having reviewed this
part of the R&R, the Court adopts this finding and denies plaintiff’s request to
reinstate the previously dismissed claims.
2

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On June 22, 2015, plaintiff was granted pro bono counsel. (See Dkt.
64.) And on February 1, 2016, plaintiff filed a witness list, which listed
Edward Linker, M.D., and Daniel R. Kaul, M.D., as experts. (Dkt. 70 at
3–4.)

It also stated that plaintiff “reserves the right to elicit

expert/opinion testimony from any individual who provided medical
treatment to Emmett Buffman during his lifetime,” and from “any and
all witnesses [disclosed] by Defendant.” (Id. at 4.) Defendant’s witness
disclosures listed as potential witnesses Dr. William Malatinsky,
Restituto Pomaloy, and Stephen Gidel. (Dkt. 71 at 1.) As an expert,
defendant listed Grant M. Greenberg. (Id.) Following these disclosures,
plaintiff’s counsel then notified defendant on April 15, 2016, that plaintiff
would “not be utilizing Dr. Edward Linkner or Dr. Daniel Kaul as
experts” in the case. (Dkt. 78-4 at 1.)
A more detailed account of the facts and background of this case are
included in the R&R (Dkt. 81) and are incorporated by reference and
adopted here. In the R&R, the Magistrate Judge found plaintiff’s claim
was properly considered as a medical malpractice claim rather than, as
plaintiff argued, an ordinary negligence claim, and because plaintiff did
not name any expert witnesses who could establish the appropriate
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standard of care relevant to plaintiff’s medical needs, as a matter of law,
plaintiff could not sustain the medical malpractice claim. (Dkt. 81 at 13–
14.)
II.

Legal Standard
A magistrate judge’s report and recommendation is made pursuant

to 28 U.S.C. § 636(b)(1). “[T]his recommendation has no presumptive
weight,” and the district judge “has the responsibility of making the final
determination.” Patrick Collins, Inc. v. John Does 1-21, 286 F.R.D. 319,
320 (E.D. Mich. 2012). If a party objects to part or all of the R&R, the
district judge must review de novo those parts to which the party has
objected. Lardie v. Birkett, 221 F. Supp. 2d 806, 807 (E.D. Mich. 2002);
Fed. R. Civ. P. 72(b)(3). De novo review “entails at least a review of the
evidence that faced the Magistrate Judge.” Lardie, 221 F. Supp. 2d at
807. After reviewing an R&R, a court may “accept, reject, or modify the
findings or recommendations.” Id.
III. Analysis
Plaintiff objects to the R&R on three grounds, and also argues
excusable neglect exists to justify the late filing of the objections. (Dkt.
82 at 7.)
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Untimely Objections to R&R
The R&R was issued on January 27, 2017, and informed the parties
they had to submit any objections within fourteen days of service, as
required by Fed. R. Civ. P. 72. (Dkt. 81 at 14.) Assuming plaintiff’s
counsel was given electronic notice of the R&R the same day it was
issued, the deadline for objections to be submitted was February 10, 2017.
Plaintiff’s counsel mailed a copy of the R&R to him in Lisbon, Ohio, where
plaintiff is currently incarcerated.

On February 13, 2017, plaintiff

mailed counsel a letter requesting that he file objections. The objections
were filed on February 14, 2017.
Objections that are filed late may be considered by a court if “the
failure to timely file objections was not the result of culpable conduct but
of ‘excusable neglect.’” Williams v. Meyer, 346 F.3d 607, 613 (6th Cir.
2003). “A party’s conduct is culpable if it ‘display[s] either an intent to
thwart judicial proceedings or a reckless disregard for the effect of its
conduct on those proceedings.’”

Id. (quoting Amernational Indus. v.

Action-Tungsram, Inc., 925 F.3d 970, 978 (6th Cir. 1991)).
Here, plaintiff was mailed a copy of the R&R soon after it was
issued. Because of the time it took for plaintiff to receive and review it,
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and then mail a letter to his attorneys to request they file objections, the
four day delay in filing objections does not evidence culpable conduct. It
demonstrates an intent to comply with the filing rules rather than thwart
or disregard them.

Accordingly, plaintiff has established excusable

neglect to justify the late filing of objections, and the Court will consider
them on the merits. Compare Williams, 346 F.3d at 613–14 (excusable
neglect where counsel sought extension of filing deadline in a timely
manner and then filed objections soon after motion was denied) and
Chandler v. Jackson, 132 F.3d 32, at *1 (6th Cir. 1997) (table) (no
excusable neglect where no objections or motion to extend time was filed
for more than one month after deadline expired).
Objection 1: Characterization of the Claim
Plaintiff argues the Magistrate Judge erred in finding his claim was
properly considered a medical malpractice claim instead of an ordinary
negligence claim because an ordinary person would know that the failure
to provide any treatment for his boils was negligent. (Dkt. 82 at 11–13.)
Under Michigan law, a medical malpractice claim may be brought
against “a licensed health care professional, licensed health care facility
or agency, or an employee or agent of a licensed health facility or agency
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who is engaging in or otherwise assisting in medical care and
treatment.”3 MICH. COMP. LAWS § 600.5838a. A claim sounds in medical
malpractice rather than ordinary negligence only if the following two
questions are answered in the affirmative:

“(1) whether the claim

pertains to an action that occurred within the course of a professional
relationship; and (2) whether the claim raises questions of medical
judgment beyond the realm of common knowledge and experience.”
Bryant v. Oakpointe Villa Nursing Centre, Inc., 471 Mich. 411, 422
(2004).
“A professional relationship sufficient to support a claim of medical
malpractice exists in those cases in which a licensed health care
professional, licensed health care facility, or the agents or employees of a
licensed health care facility, were subject to a contractual duty that
required that professional, that facility, or the agents or employees of
that facility, to render professional health care services to the plaintiff.”
Bryant, 471 Mich. at 422. Plaintiff does object to the R&R’s finding that
the events at issue “occurred within the course of a professional

Under the Federal Tort Claims Act, the substance of a medical malpractice claim is
governed by the relevant state law, which, in this case, is Michigan. Shedden v.
United States, 101 F. App’x 114, 115–16 (6th Cir. 2004) (citations omitted).
3

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relationship.” And, as set forth in greater detail in the R&R, Mr. Pomaloy
and Mr. Gidel were employees of the Bureau of Prisons, and supervised
by Dr. Malatinsky, specifically to provide health services to inmates.
Thus, the requisite professional relationship existed between plaintiff
and the medical personnel to satisfy the first prong of the test for whether
the claim is indeed for medical malpractice.
Plaintiff objects to the finding that the actions he challenges “raise[]
questions of medical judgment beyond the realm of common knowledge
and experience.” Here, plaintiff argues he received no treatment for two
boils, and his three requests to Dr. Malatinsky for treatment between
February 13, and 20, 2013 were ignored, and “[i]t is well within common
knowledge and experience that an ordinary prudent person would expect
to be evaluated and receive treatment.” (Dkt. 82 at 12.)
To assess whether this case should be viewed as an ordinary
negligence or medical malpractice case, the Court is not bound by the
“party’s choice of label” because that would “exalt form over substance”
and allow a party to “avoid the dismissal of a cause of action through
artful pleading.” Norris v. Lincoln Park Police Officers, 292 Mich. App.

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574, 582 (2011). Instead, the Court must determine the “gravamen of []
plaintiff’s action . . . by examining the entire claim.” Id.
Here, plaintiff was examined on February 13, 2013 by Mr. Pomaloy,
who evaluated plaintiff’s complaints of a number of symptoms, including
a boil, allegedly misdiagnosed plaintiff with an acute respiratory
infection, and failed to treat the boil. Plaintiff then complained in writing
to Dr. Malatinsky, but did not return for treatment until February 20,
2013, despite being instructed to return if his condition worsened. On
February 20, 2013, Mr. Gidel prescribed medication, ordered lab tests,
and instructed plaintiff to return daily for care. And because of these
individuals’ actions, plaintiff allegedly suffered severe injuries that were
caused by their actions.
The “gravamen of [] plaintiff’s action,” therefore, goes to whether
these individuals appropriately diagnosed, treated, and instructed
plaintiff on his medical needs. In other words, the question is whether
these individuals exercised appropriate medical judgment. And as the
standard indicates, when “medical judgment” is at issue, a plaintiff’s
claim is one for medical malpractice. In this case, because the crux of
plaintiff’s claim, from his initial appointment with Mr. Pomaloy on
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February 13, 2013, to his final appointment with Mr. Gidel on February
22, 2013, is whether these individuals failed to treat or properly diagnose
him, plaintiff’s claim sounds in medical malpractice, not ordinary
negligence. See David v. Sternberg, 272 Mich. App. 377, 383–84 (2006)
(failure to respond to complaints of pain and fever sound in medical
malpractice not ordinary negligence). Accordingly, plaintiff’s objection to
the finding that his claim is for medical malpractice is denied, and the
R&R as to this issue is adopted.
Objection 2: Identification of Experts
Plaintiff objects to the proposed finding that he did not properly
identify expert witnesses to establish the appropriate standard of care.
(Dkt. 82 at 14.)

Plaintiff argues that (1) defendant conceded the

appropriate standard of care through the affidavit of Dr. Grant
Greenberg (Dkt. 43-15), and (2) plaintiff’s amended witness list
sufficiently identified Mr. Pomaloy, Mr. Gidel, and Dr. Malatinsky as
experts. (Dkt. 82 at 14.)
In a medical malpractice claim, a plaintiff must establish “(1) the
applicable standard of care, (2) breach of that standard of care by the
defendant, (3) injury, and (4) proximate causation between the alleged
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breach and the injury.”

Elher v. Misra, 499 Mich. 11, 21 (2016).

“Generally, expert testimony is required in a malpractice case to
establish the applicable standard of care and to demonstrate that the
professional breached that standard.” Id.
Plaintiff first argues he may rely on the affidavit of Dr. Grant to
establish the appropriate standard of care under Michigan’s adverse
party statute, MICH. COMP. LAWS § 600.2161, which permits a party to
call as its own witness “the opposite party [or] an employee or agent of
the opposite party.” Dr. Grant is neither a defendant nor an employee or
agent of defendant, and therefore could not be called in plaintiff’s casein-chief under Michigan’s adverse party statute. Accordingly, plaintiff
cannot rely on Dr. Grant’s affidavit to establish a prima facie case of
medical malpractice.
Plaintiff next argues he properly identified and disclosed Mr.
Pomaloy, Mr. Gidel, and Dr. Malatinsky as expert witnesses, and may
rely on their testimony to establish the appropriate standard of care.
Plaintiff’s witness list stated he “reserves the right to elicit expert/opinion
testimony from any individual who provided medical treatment to
Emmett Buffman during his lifetime.” (Dkt. 70 at 4.) But plaintiff did
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not specifically name Mr. Pomaloy, Mr. Gidel, or Dr. Malatinsky as
expert witnesses, and defendant also did not list them as experts.
Even assuming plaintiff’s witness list gave defendants sufficient
notice that these three individuals may be called as experts, plaintiff has
still failed to provide the required disclosures under Fed. R. Civ. P. 26(a)
that would permit their testimony to be admitted at trial. When treating
physicians are called as experts, they “usually do not trigger” the
requirement to submit an expert report. Phillips v. UAW Int’l, Case No.
15-cv-10525, 2015 WL 6156968, at *1 (E.D. Mich. Oct. 19, 2015). This
rule applies as long as the testimony and “opinions [are] formed as a part
of the patient’s treatment and diagnosis.” Avendt v. Covidien Inc., 314
F.R.D. 547, 556 (E.D. Mich. 2016) (quoting Rule 26 Advisory Committee
Notes, 2010 Amendment, Subdivision (a)(2)(C)). In lieu of expert reports,
however, the disclosure must be accompanied by “(i) the subject matter
on which the witness is expected to present evidence . . .; and (ii) a
summary of the facts and opinions to which the witness is expected to
testify.” Fed. R. Civ. P. 26(a)(2)(C). But if the testimony goes “beyond
the scope of treatment and diagnosis” of the patient treated by the
witness, then an expert report is required. Avendt, 314 F.R.D. at 556
14

(quoting Rule 26 Advisory Committee Notes, 2010 Amendment,
Subdivision (a)(2)(C)).
In this case, plaintiff argues he identified all treating physicians as
potential expert witnesses.

However, he did not identify either the

subject matter of the testimony or provide a summary of the facts and
opinions to which they would be expected to testify. Thus, these proposed
experts were not properly disclosed pursuant to Fed. R. Civ. P. 26.
Further, to the extent that they would, as plaintiff indicates, testify
about the appropriate standard of care, they would no longer be testifying
in their capacities as treating physicians, because the standard of care is
not a fact or opinion learned from or informed by the treatment or
diagnosis of plaintiff. Rather, it is testimony that would be given by a
witness “retained or specially employed to provide expert testimony.”
Fed. R. Civ. P. 26(a)(2)(B).

Thus, plaintiff is required to identify

specifically which treating physicians he intended to call as experts with
regard to the standard of care and submit expert reports. Plaintiff has
not done so. Thus, these three individuals would not be permitted to give
expert testimony to establish the appropriate standard of care.

See

Tanner v. Grand River Navigation Co., Inc., Case No. 14-cv-13478, 2015
15

WL 8310291, at *2 (E.D. Mich. Dec. 9, 2015) (citing Dickenson v. Cardiax
and Thoracic Surgery of E. Tenn., 388 F.3d 976, 983 (6th Cir. 2004)).
Because none of the above witnesses have been sufficiently
identified as experts who are qualified to establish the appropriate
standard of care during plaintiff’s case-in-chief, plaintiff has not
demonstrated he has an expert whose testimony would establish a prima
facie case of medical malpractice. Thus, as a matter of law, plaintiff’s
claim cannot survive, and defendant is entitled to summary judgment.
Accordingly, plaintiff’s objection to the finding that he did not properly
identify expert witnesses is denied. However, because the Court has
reached this conclusion on grounds different from the Magistrate Judge,
this part of the R&R is not adopted.4
Objection 3: Leave to Modify Scheduling Order
Plaintiff seeks to modify the scheduling order (Dkt. 66) that was
entered August 14, 2015, to add Mr. Pomaloy, Mr. Gidel, and Dr.
Malatinsky as experts for plaintiff pursuant to Fed. R. Civ. P. 16(b)(4).
(Dkt. 82 at 15.)

Although plaintiff argues for a scheduling order

The R&R concluded plaintiff had failed to identify expert witnesses because (1) the
cases relied on predated the 1993 amendment to the medical malpractice statute, and
(2) the individuals were not given notice that they may be called as experts to testify
against themselves. (Dkt. 81 at 13–14.)
4

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modification, what plaintiff seeks is to disclose these three individuals as
experts after the disclosure deadline, which is governed by Fed. R. Civ.
P. 37(c), not Rule 16.
Fed. R. Civ. P. 37(c) states that a party that “fails to . . . identify a
witness as required by Rule 26(a) . . . is not allowed to use that . . . witness
. . . unless the failure was substantially justified or is harmless.” “A
harmless violation is one that involves an honest mistake, combined with
sufficient knowledge by the adversary.” Tanner, 2015 WL 8310291, at *2
(citing Roberts ex rel. Johnson v. Galen of Va., 325 F.3d 776, 783 (6th Cir.
2003)).
In this case, plaintiff’s deadline to name and disclose expert
witnesses was May 1, 2016. (Dkt. 75.) Here, plaintiff has offered no
reason why he failed to comply in a timely fashion with the expert
witness identification requirements of Fed. R. Civ. P. 26(a)(2)(B) or (C).
And when plaintiff decided in April 2016 not to use Dr. Edward Linkner
or Dr. Daniel Kaul as experts, plaintiff had two weeks to either amend
the witness list or ask for an extension. Plaintiff did not do so, and has
offered no reason for why an extension was not sought. Thus, plaintiff
has failed to establish that the failure to disclose was either substantially
17

justified or a harmless violation.

Accordingly, the Court denies the

request to add expert witnesses.
IV.

Conclusion

For the reasons set forth above, plaintiff’s objections (Dkt. 82) are
DENIED. The Report and Recommendation (Dkt. 81) is ADOPTED IN
PART as to all issues except whether plaintiff sufficiently identified an
expert witness, and defendant’s motion for summary judgment (Dkt. 78)
is GRANTED.
IT IS SO ORDERED.
Dated: April 4, 2017
Ann Arbor, Michigan

s/Judith E. Levy
JUDITH E. LEVY
United States District Judge

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served
upon counsel of record and any unrepresented parties via the Court’s
ECF System to their respective email or First Class U.S. mail addresses
disclosed on the Notice of Electronic Filing on April 4, 2017.
s/Shawna C. Burns
SHAWNA C. BURNS
Case Manager Generalist

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