South et al v. Austin et al
Filing
103
ORDER denying 69 Motion for Partial Summary Judgment; granting in part and denying in part 76 Motion to Strike. Signed by District Judge Daniel P. Jordan, III on December 2, 2016 (HF)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
KAWANZA SOUTH et al.
V.
PLAINTIFFS
CIVIL ACTION NO. 3:15CV342-DPJ-FKB
JOSEPH AUSTIN, M.D., et al.
DEFENDANTS
ORDER
This wrongful-death, medical-malpractice case is before the Court on Defendants’
Motion for Partial Summary Judgment [69] and Motion to Strike [76], in which they seek to
exclude supplemental opinions from Plaintiffs’ expert Dr. Keith Millikan. The issues have been
fully briefed. For reasons that follow, the Court finds that portions of Dr. Millikan’s opinions
should be stricken as delinquent but that partial summary judgment should be denied without
prejudice to Defendants’ right to raise their arguments at trial.
I.
Background
On March 7, 2013, Sheila South was admitted to the River Region Medical Center for a
transvaginal hysterectomy and left salpingo-oophorectomy. Defendant Dr. Joseph Austin, M.D.,
performed the procedures. According to the Complaint, Ms. South’s condition deteriorated after
the surgery, and she was transferred to ICU before passing away on March 20, 2013. See
Compl. [1] at 2.
On May 5, 2015, Ms. South’s children Kawanza and Leonard South sued Defendants
Austin, Vicksburg Women’s Care, Inc., and five John and Jane Does in this Court claiming
negligence and breach of the standard of care. Id. at 3. They correctly premise jurisdiction on
diversity because they are both Louisiana residents while Defendants are residents of
Mississippi. See Bush v. Carpenter Bros., 447 F.2d 707, 711 (5th Cir. 1971) (holding that
diversity is based on the residence of personal representatives in wrongful-death case).
The two pending motions are somewhat interrelated. On September 6, 2016, Defendants
moved for partial summary judgment, contending that Dr. Austin cannot be held vicariously
liable for any alleged acts of negligence occurring after March 9, 2013, the date that Dr. Austin
began a vacation and other physicians assumed responsibility for Ms. South’s care. In response,
Plaintiffs submitted a supplemental affidavit from their expert, Dr. Keith Millikan, which offered
new opinions regarding Dr. Austin’s liability and causation. Defendants’ subsequent motion to
strike seeks to exclude these new opinions. The Court will first consider the motion to strike.
II.
Motion to Strike
“The admission or exclusion of expert testimony is a matter left to the discretion of the
trial court . . . .” Eiland v. Westinghouse Elec. Corp., 58 F.3d 176, 180 (5th Cir. 1995). In this
case, the parties dispute whether Plaintiffs offered delinquent new opinions or merely
supplemented their expert’s original opinions pursuant to Federal Rule of Civil Procedure
26(a)(2)(E).
A. Standards
Rule 26(a)(2)(B) requires, inter alia, that expert reports contain “a complete statement of
all opinions the witness will express and the basis and reasons for them.” Thus, “[e]xpert reports
under Rule 26 must be ‘detailed and complete,’ not ‘sketchy and vague.’” Harmon v. Ga. Gulf
Lake Charles L.L.C., 476 F. App’x 31, 36 (5th Cir. 2012) (citing Rule 26 advisory committee’s
notes and Sierra Club, Lone Star Chapter v. Cedar Point Oil Co., 73 F.3d 546, 571 (5th Cir.
1996)).
2
Nevertheless, Rule 26(e)(1)(A) allows a party to supplement when it “learns that in some
material respect the disclosure or response is incomplete or incorrect.” “The purpose of rebuttal
and supplementary disclosures is just that—to rebut and to supplement. These disclosures are
not intended to provide an extension of the deadline by which a party must deliver the lion’s
share of its expert information.” Sierra Club, 73 F.3d at 571. And the rule is not a basis to make
“material additions” to an initial report. Harmon, 476 F. App’x at 38, cited with approval in
Cole v. Hunter, 68 F. Supp. 3d 628, 639 (N.D. Tex. 2014) (holding that “[s]upplemental opinions
must not include material changes or corrections to the expert opinions”).
As such, courts frequently disallow purported “supplements” offered to defeat summary
judgment when the opinions could have been offered at an earlier time. See Cutler v. Louisville
Ladder, Inc., No. 4:10-4684, 2012 WL 2994271, at *5 n.43 (S.D. Tex. July 20, 2012) (Atlas, J.)
(rejecting “supplementation” where party failed to show bases of new opinions were unavailable
before disclosure deadline); Buxton v. Lil’ Drug Store Prods., Inc., No. 2:02CV178KS-MTP,
2007 WL 2254492, at *5–6 (S.D. Miss. Aug. 1, 2007), aff’d, 294 F. App’x 92 (5th Cir. 2008)
(citing Cleave v. Renal Care Grp., Inc., No. 2:04CV161-P-A, 2005 WL 1629750, at * 1 (N.D.
Miss. July 11, 2005) (excluding supplemental expert affidavit produced in response to summaryjudgment motion where plaintiff failed to identify new information which would prompt new
opinions)).
B. Analysis
The present motion springs from a somewhat unusual procedural posture. Normally, the
plaintiff designates experts before the defendant. Supplements sometimes follow to address new
issues raised in the defendant’s reports. But here, Plaintiffs missed their deadline to disclose, so
Defendants ended up going first. Plaintiffs then sought and received leave to designate out of
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time, which they did. As a result, Plaintiffs had full knowledge of Defendants’ theories before
they were forced to disclose theirs. Yet their expert, Dr. Millikan, did not address many of those
theories in his initial report, waiting instead to submit a new affidavit after Defendants moved for
summary judgment. As discussed below, this procedural history impacts whether the opinions in
the affidavit are true supplements.1
Turning then to the specific opinions now in dispute, the parties compare Dr. Millikan’s
new affidavit to his original report to determine whether the information reflects a true
supplement. Both parties compare the same twelve opinions from the affidavit with statements
from the original report. The Court will follow the parties’ approach, providing those opinions
followed by the Plaintiffs’ descriptions of the original opinions they sought to supplement.
Opinion #1
Opinion in New Affidavit: “Sheila South’s increased blood pressure and
hematocrit on March 8, 2013, was attributable to the 4 units of blood transfused
and was just a temporary and pseudo increase.” Defs.’ Mem. [77] at 4.
Plaintiffs’ Description of Original Report: “Ms. South had to be transfused with
additional units of blood on March 7, 12, 13, and 20.” Pls.’ Mem. [83] at 6.
Analysis: Defendants’ expert Dr. Joseph Hudgens stated in his report that on
March 8, 2013, Ms. South’s “blood pressures were stable.” Hudgens’ Report [842] at 2. Yet Dr. Millikan’s original report made no reference to a “pseudo
increase” caused by a transfusion. Defs.’ Reply [84] at 6. He did, however, offer
a chronology stating that the blood pressure and hematocrit readings on March 8
did not hold. For example, he notes that on March 7, “Ms. South was markedly
hypotensive.” Millikan Report [78-1] at 2. On March 9, a consulting doctor
again recorded hypotension. Id. at 3; see also id. at 4 (noting continued
hypotension). He also notes “persistent drops in hematocrit levels” and ongoing
blood loss. Id. at 3; see also id. at 4. It appears to be in that context that Dr.
1
Technically speaking, the supplemental affidavit was itself delinquent. See Fed. R. Civ. P.
26(e)(2) (allowing courts to set alternative deadlines for supplements); L.U. Civ. R. 26(a)(5)
(requiring Rule 26(e)(1)(A) supplements no “later than the discovery deadline established by the
case management order”).
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Millikan mentioned the transfusions on March 7, 12, 13, and 20. Id. at 3. Dr.
Millikan will be allowed to discuss this history. He did not, however, attribute the
March 8 readings to the transfusions, nor mention “pseudo increases,” despite
having knowledge of Dr. Hudgens’ opinions. Those opinions are new.
Opinion #2
Opinion in New Affidavit: “A physician who operates on a patient has a nondelegable duty and is responsible for the post-operative management of the
patient that he/she operated on.” Defs.’ Mem. [77] at 4.
Plaintiffs’ Description of Original Report: “[T]he standard of care requires a
reasonably prudent and minimally competent surgeon to promptly detect and
manage post surgical complications.” Pls.’ Mem. [83] at 6.
Analysis: Whether Dr. Austin breached duties related to his upcoming vacation
strikes at the heart of the present motion. According to Defendants’ expert, Ms.
South’s condition on March 8, 2013, “was sufficiently stable for Dr. Austin to
leave town for a planned vacation.” Hudgens’ Report [84-2] at 2. As noted
above, these opinions were disclosed before Dr. Millikan offered his first report,
yet he took no issue with this crucial opinion and said nothing about nondelegable duties. It was not until after Defendants moved for summary judgment
that Dr. Millikan offered his opinion regarding non-delegable duties. Dr. Millikan
could have—and should have—initially provided “detailed and complete”
opinions regarding Dr. Austin’s duties. See Harmon, 476 F. App’x at 36. The
opinion regarding non-delegable duties is not a supplement; it is a new opinion.
Opinion #3
Opinion in New Affidavit: “If the physician leaves to go out of town, the
physician needs to undertake necessary medical interventions, make sure that the
post-operative complications have resolved[,] and inform the patient and the
physician assuming responsibility about the patient’s post-operative
complications, current status[,] and the need for any further interventions.” Defs.’
Mem. [77] at 4.
Plaintiffs’ Description of Original Report: “Dr. Austin breached the standard of
care by failing to properly detect, diagnose and manage post-surgical
complications despite Ms. South’s low blood pressure readings, decreased urine
output, and clinical presentation post-surgery.” Pls.’ Mem. [83] at 7.
Analysis: Again, Defendants disclosed their expert opinions regarding Dr.
Austin’s vacation before Dr. Millikan offered his first report, yet he said nothing
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about the duties that arise when a doctor leaves town. Instead, Dr. Millikan
expressed generic opinions regarding the standard of postsurgical care and only
later offered this specific opinion. The two are not the same, and this is not a
proper supplement.
Opinion #4
Opinion in New Affidavit: “The failure by Dr. Austin to provide such immediate
diagnostic and surgical interventions prior to leaving to go on vacation was a
breach of the standard of care and proximately caused and contributed to the postsurgical complications and subsequent death of Ms. Sheila South.” Defs.’ Mem.
[77] at 4.
Plaintiffs’ Description of Original Report: “[T]he standard of care requires that a
CT scan should be performed emergently to diagnose and determine the cause of
the hemorrhage in a patient who is markedly hypotensive and showing signs of a
post-operative blood loss; and that the standard of care requires that if a bleed is
found the surgeon should perform timely exploratory surgery, clean the bleed and
control the hemorrhage.” Pls.’ Mem. [83] at 7.
Analysis: Defendants take issue with the statement “prior to leaving town.” For
the reasons stated above, this phrase reflects a new opinion. But to be clear, Dr.
Millikan says enough in his original report to put Defendants on notice of his
opinion that Dr. Austin should have taken certain actions during the time before
he left. Thus, he may offer the opinions he previously disclosed regarding alleged
missteps while Dr. Austin was still in town.
Opinion #5
Opinion in New Affidavit: “Emergency surgery on March 12 would have been
too late to save the patient.” Defs.’ Mem. [77] at 4.
Plaintiffs’ Description of Original Report: “The initial report did not opine that
any interventions on March 12, 2013, would have saved the patient. Dr.
Millikan’s Supplemental Affidavit stated that while the failure on March 12,
2013, was a breach of the standard of care, based on a reasonable degree of
medical probability, by the time Dr. Austin left to [go] on vacation, the acute post
operative blood loss suffered by Ms. South had already started a cascade of
medical events; and that any surgical intervention after this time would probably
have not saved Ms. South’[s] life and/or the chances of surgical intervention
saving her life were greatly diminished.” Pls.’ Mem. [83] at 8 (emphasis added).
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Analysis: Plaintiffs’ description of Dr. Millikan’s initial report misses the mark.
Notably, he never stated in his report that death was inevitable by March 12,
2013. He stated instead that based on the March 12 CT scan, Defendants “missed
a second opportunity to control the hemorrhage and prevent further deterioration
of the patient’s medical condition.” Millikan Report [78-1] at 4. The new
opinion rejects the original, offering a causation theory Dr. Millikan never
previously expressed in order to avoid Defendants’ summary-judgment
arguments. This is not a proper supplement.
Opinion #6
Opinion in New Affidavit: “The vaginal hysterectomy performed by Dr. Austin
was more risky and prone to complications than an abdominal hysterectomy
would have been.” Defs.’ Mem. [77] at 4.
Plaintiffs’ Description of Original Report: “Dr. Millikan’s initial report notes that
Dr. Austin performed a transvaginal hysterectomy. Dr. Millikan’s initial report
opined that it was a breach of the standard of care to not timely clean the bleed.
Dr. Austin in his deposition testified that the blood on the CT scan was old
blood.” Pls.’ Mem. [83] at 8–9.
Analysis: The original report fails to mention abdominal hysterectomy, the risks
associated with a transvaginal hysterectomy, or any suggestion that the choice of
one over the other was in anyway relevant to the alleged breach of duty. This
therefore constitutes a new opinion.
Opinion #7
Opinion in New Affidavit: “Ms. South had overwhelming sepsis that contributed
to her death.” Defs.’ Mem. [77] at 5.
Plaintiffs’ Description of Original Report: “Dr. Millikan’s initial report states that
he will testify based on his review of the medical records. Dr. Millikan notes in
his initial report that Ms. South continued with sepsis and hypotension.
Defendant Dr. Austin testified in his deposition that he noted that the patient had
sepsis and that the fluid collection as shown on the CT could be the source of the
sepsis (Exhibit 3 - Dr. Austin’s deposition - Page 76, lines 24-25, Page 77, lines
3-10). Dr. Austin further testified in his deposition about the cause of death and
stated that sepsis was the overwhelming event. (Id. at Page 80, lines 24-25, Page
81, lines 1-11).” Pls.’ Mem. [83] at 9.
Analysis: There is no dispute that Ms. South suffered from sepsis or that she had a
host of other failures and eventually suffered a cardiac arrest. As for the causal
7
relationship between the sepsis and death, Dr. Austin explained that the sepsis
related to the other medical issues, testifying that “obviously as the sepsis
worsened her clinical condition worsened and she subsequently died from that . . .
I feel like the sepsis was probably the overwhelming event.” Austin Dep. [82–3]
at 6–7 (CM/ECF pagination). But the question is whether Dr. Millikan can offer
the same opinion. As Defendants note, Dr. Millikan did not offer a precise causal
link between the sepsis and the death in his initial report. But he does catalog Ms.
South’s postoperative conditions, including sepsis, and states that Defendants
failed to timely detect and treat those problems ultimately leading to her death.
His new affidavit does not say that sepsis is the sole cause of death, stating instead
that it “contributed.” This is not inconsistent with the original report and appears
to be a valid supplement.
Opinion #8
Opinion in New Affidavit: “Blood in the pelvis makes a patient more susceptible
to infection and resulting sepsis.” Defs.’ Mem. [77] at 5.
Plaintiffs’ Description of Original Report: “Dr. Millikan’s initial report states that
he will testify based on his review of the medical records. Dr. Millikan notes in
his initial report that Ms. South continued with sepsis and hypotension.
Defendant Dr. Austin testified in his deposition that he noted that the patient had
sepsis and that the fluid collection as shown on the CT could be the source of the
sepsis (Exhibit 3 - Dr. Austin’s deposition - Page 76, lines 24-25, Page 77, lines
3-10). Dr. Austin further testified in his deposition about the cause of death and
stated that sepsis was the overwhelming event. (Id. at Page 80, lines 24–25, Page
81, lines 1–11).” Pls.’ Mem. [83] at 9.
Analysis: While Dr. Millikan can certainly testify to the factual record regarding
Ms. South’s condition, he did not offer any opinions regarding the significance of
blood in the pelvis. His new conclusions drawn from the facts he previously
reported constitute new opinions rather than valid supplements.
Opinion #9
Opinion in New Affidavit: “The post-operative blood that was pooling in Ms.
South’s pelvis was the source of the sepsis.” Defs.’ Mem. [77] at 5.
Plaintiffs’ Description of Original Report: “Dr. Millikan’s initial report states that
he will testify based on his review of the medical records. Dr. Millikan notes in
his initial report that Ms. South continued with sepsis and hypotension. Defendant
Dr. Austin testified in his deposition that he noted that the patient had sepsis and
that the fluid collection as shown on the CT could be the source of the sepsis
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(Exhibit 3 - Dr. Austin’s deposition - Page 76, lines 24–25, Page 77, lines 3–10).
Dr. Austin further testified in his deposition about the cause of death and stated
that sepsis was the overwhelming event. (Id. at Page 80, lines 24–25, Page 81,
lines 1–11).” Pls.’ Mem. [83] at 9.
Analysis: While Dr. Millikan can certainly testify to the factual record regarding
Ms. South’s condition, he did not offer any opinions regarding the source of the
sepsis or opinions that related the sepsis to the blood that pooled in Ms. South’s
pelvis. His conclusions based on the facts he previously recorded constitute new
opinions rather than valid supplements.
Opinion #10
Opinion in New Affidavit: “Defendants were negligent in not evacuating the
leaked blood.” Defs.’ Mem. [77] at 5.
Plaintiffs’ Description of Original Report: “Dr. Millikan’s initial report noted that
the Defendants breached the standard of care by not performing a timely
exploratory surgery, to clean the bleed and control the hemorrhage.” Pls.’ Mem.
[83] at 10.
Analysis: Defendants argue that “evacuating” the blood is not the same as
“clean[ing] the bleed.” Defs.’ Reply [84] at 11. The Court lacks the knowledge
necessary to tell whether Defendants are correct, and they fail to support the
argument with evidence. The motion is therefore denied as to this opinion.
Opinion #11
Opinion in New Affidavit: “The blood that had leaked post-operatively, resulting
in a need for an immediate transfusion of four units of blood, was probably
pooling in Ms. South’s pelvis.” Defs.’ Mem. [77] at 5.
Plaintiffs’ Description of Original Report: “Dr. Millikan’s initial report noted that
the CT of the pelvis showed a moderate amount of fluid that was suggestive of an
acute hemorrhage. Dr. Austin testified in his deposition that the blood that was
present on the CT scan was old blood from 5 days ago and that it had not been
removed. Dr. Austin admitted in his deposition that the blood in Ms. South’s
pelvis was old blood from the site of the surgery. (Exhibit 3 - Dr. Austin’s
deposition - Page 57-58, Page 87-88).” Pls.’ Mem. [83] at 10.
Analysis: Dr. Millikan previously noted the pooled blood, but he never attempted
to explain its source. This therefore constitutes a new opinion.
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Opinion #12
Opinion in New Affidavit: “Blood in the pelvis makes a patient more susceptible
to infection and resulting sepsis.” Defs.’ Mem. [77] at 5.
Plaintiffs’ Description of Original Report: “Dr. Millikan’s initial report states that
he will testify based on his review of the medical records. Dr. Millikan notes in
his initial report that Ms. South continued with sepsis and hypotension. Defendant
Dr. Austin testified in his deposition that he noted that the patient had sepsis and
that the fluid collection as shown on the CT could be the source of the sepsis
(Exhibit 3 - Dr. Austin’s deposition - Page 76, lines 24-25, Page 77, lines 3-10).
Dr. Austin further testified in his deposition about the cause of death and stated
that sepsis was the overwhelming event. (Id. at Page 80, lines 24-25, Page 81,
lines 1-11).” Pls.’ Mem. [83] at 9.
Analysis: Again, Dr. Millikan previously noted the pooled blood, but he never
offered an expert opinion linking it to the likelihood of contracting sepsis. This is
a new opinion.
In sum, Dr. Millikan has offered new opinions that cannot be viewed as valid
supplements. While Dr. Millikan’s initial report provides the medical history in detail, the actual
opinions in his initial report are largely generic statements that Defendants breached various
duties of care. The disputed opinions from his affidavit are more specific and detailed, offering
additional liability and causation theories to avoid summary judgment. A party cannot
circumvent the disclosure requirements in this way. Sierra Club, 73 F.3d at 571.
But that holding does not end the analysis. Under Rule 37(c)(1), “[i]f a party fails to
provide information or identify a witness as required by Rule 26(a) or (e), the party is not
allowed to use that information . . . at a trial, unless the failure was substantially justified or is
harmless.” Whether the non-compliance was substantially justified or harmless turns on the
following four-factor test: “(1) the importance of the excluded testimony, (2) the explanation of
the party for its failure to comply with the court’s order, (3) the potential prejudice that would
arise from allowing the testimony, and (4) the availability of a continuance to cure such
10
prejudice.” E.E.O.C. v. Gen. Dynamics Corp., 999 F.2d 113, 115 (5th Cir. 1993) (citation
omitted).
The first factor relates to the importance of the testimony. Some of the more precise new
opinions find support in other parts of the record, including Dr. Austin’s own testimony. This
diminishes the importance of those opinions. But other opinions are not found elsewhere, most
notably those related to the duties Dr. Austin allegedly faced because he was leaving town for
vacation and the causation opinions related to the March 12 CT scan. While these theories are
important to aspects of Plaintiffs’ claim, the exclusion of this evidence is not fatal to their overall
case. Dr. Millikan still offers other opinions regarding alleged missteps that occurred while Dr.
Austin was on call. Regardless, the importance of the opinions is outweighed by other factors.
The next question examines the explanation for the late disclosure. Here, Plaintiffs
generally explain that “[t]he Affidavit from Dr. Keith W. Millikan was in response to issues
raised by the Defendant[s] in their Motion for Partial Summary Judgment.” Pls.’ Resp. [83] at 1.
Even assuming that could be a valid excuse in some cases, Defendants disclosed their theories
before Dr. Millikan issued his first report.
Finally, the potential prejudice and the possibility of a continuance both weigh against
allowing this late disclosure. Defendants first moved for summary judgment on February 18,
2016, approximately one month after Plaintiffs missed their original expert-disclosure deadline.
See Defs.’ Mot. [26]. Plaintiffs then sought and received leave to designate experts out of time.
And as a result, the Court denied Defendants’ first summary-judgment motion without prejudice
finding that it was moot. See April 8, 2016 Text Order. Defendants then filed the present
motion for partial summary judgment, contending that Dr. Millikan’s expert report still failed to
create a fact question as to events occurring after Dr. Austin began his vacation. This prompted
11
Dr. Millikan’s disputed affidavit. Were the Court to again allow a delinquent disclosure, it
would likely reopen discovery as to the new opinions and again allow additional motion practice.
That would then require a third continuance of this trial.2 At some point, the discovery and
disclosure phases of a case must come to an end, and a court must enforce its rules and
procedures. These factors weigh against allowing another extension.
In conclusion, the Court finds that many of the disputed opinions are new rather than
valid supplements. The Court likewise finds that the first, third, and fourth factors weigh heavily
in favor of disallowing the delinquent disclosures. The second factor—the significance of the
evidence—weighs against Plaintiffs as to those opinions that find support elsewhere, but is
otherwise outweighed as to the opinions for which there is no substitute.
In sum, the Court finds that Opinions #1, #4, #7, and #10 will be allowed to the extent stated
above. Opinions #2, #3, #5, #6, #8, #9, #11, and #12 should be stricken as delinquent.
III.
Motion for Partial Summary Judgment
A. Standard
Summary judgment is warranted under Federal Rule of Civil Procedure 56(a) when
evidence reveals no genuine dispute regarding any material fact and that the moving party is
entitled to judgment as a matter of law. The rule “mandates the entry of summary judgment,
after adequate time for discovery and upon motion, against a party who fails to make a showing
2
The Case was originally set for trial October 3, 2016, but was moved to October 17, 2016 due
to a conflict for defense counsel. See Motion [18] Sept. 28, 2015; Text-Only Order Oct. 7, 2015.
It was continued again May 4, 2016, when the Court granted Defendants’ unopposed motion to
continue to allow discovery. See May 4, 2016 Text Order. Though Plaintiffs do not appear to be
at fault for either continuance, remedying the late supplement would further postpone a case that
has already experienced delay.
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sufficient to establish the existence of an element essential to that party’s case, and on which that
party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
The party moving for summary judgment “bears the initial responsibility of informing the
district court of the basis for its motion, and identifying those portions of [the record] which it
believes demonstrate the absence of a genuine issue of material fact.” Id. at 323. The
nonmoving party must then “go beyond the pleadings” and “designate ‘specific facts showing
that there is a genuine issue for trial.’” Id. at 324. In reviewing the evidence, factual
controversies are to be resolved in favor of the nonmovant, “but only when . . . both parties have
submitted evidence of contradictory facts.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th
Cir. 1994) (en banc) (per curiam). When such contradictory facts exist, the court may “not make
credibility determinations or weigh the evidence.” Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133, 150 (2000).
B. Analysis
For the most part, the parties’ respective briefs take little issue with each other.
Defendants contend that “they cannot be held liable for any negligence in the care and treatment
of Sheila South occurring after 6:30 a.m. on Saturday, March 9, 2013, when Dr. Austin was out
of town on vacation and other medical personnel were caring for the patient.” Defs.’ Mem. [70]
at 1 (emphasis added). For their part, Plaintiffs spend the vast majority of their time arguing that
Dr. Austin can be held personally liable for his acts or omissions before his March 9 departure
for vacation if they contributed to cause the ultimate injuries. See Pls.’ Mem. [73]. The latter
argument is not necessarily wrong, but it fails to address the meat of Defendants’ motion.
Regarding what happened after Dr. Austin departed, Mississippi law states that a doctor
has a non-delegable duty to care for and treat his or her patient. Partin v. N. Miss. Med. Ctr.,
13
Inc., 929 So. 2d 924, 936 (Miss. Ct. App. 2005). But “this non-delegable duty should [not] be
understood to create vicarious liability for a doctor who is off-duty, off-call, and out of town at
the time that an on-duty, on-call doctor commits malpractice.” Id. “An off-call doctor may, of
course, be directly liable for his own negligence, if his leaving to go off-call (or leaving for
vacation) at the particular time was itself negligent or if his choice of on-call doctor was
negligent.” Id. In the present case, there is no competent record evidence that leaving was itself
negligent or that Dr. Austin is somehow liable regarding the choice of the treating physician.
Having said that, it is not apparent that the present motion will impact the evidence
presented at trial. The Court has already excluded Dr. Millikan’s late opinions related to the
vacation, and both sides agree that Dr. Austin’s acts before he left are fair game. Moreover, the
medical history after March 9 is relevant at least as to causation, if not comparative fault.
Finally, the jury is entitled to hear and consider the extent to which Dr. Austin communicated
with others about Ms. South during his vacation. Accordingly, it appears to the Court that the
vicarious liability issue will not impact the trial and should be addressed on directed verdict or
during the charge conference. As such, the motion for partial summary judgment should be
denied, and the issue carried to trial. See Kunin v. Feofanov, 69 F.3d 59, 62 (5th Cir. 1995)
(holding that “even if the standards of Rule 56 are met, a court has discretion to deny a motion
for summary judgment if it believes that ‘a better course would be to proceed to a full trial’”
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255–56 (1986))).3
IV.
Conclusion
The Court has considered all arguments advanced by the parties; those not directly
addressed in this Order would not have changed the outcome. For the reasons explained,
3
This issue will be addressed in greater detail during the December 9, 2016 pretrial conference.
14
Defendants’ motion to strike [76] is granted in part and denied in part, in that portions of Dr.
Millikan’s opinions should be stricken as delinquent. Defendants’ motion for partial summary
judgment [69] is denied without prejudice to Defendants’ right to raise their arguments at trial.
SO ORDERED AND ADJUDGED this the 2nd day of December, 2016.
s/ Daniel P. Jordan III
UNITED STATES DISTRICT JUDGE
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