Tyler v. Missouri Baptist Medical Center et al

Filing 31

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that Defendants Motion for Summary Judgment, [Doc. No. 28 ], is granted. A separate judgment in accordance with this Opinion, Memorandum and Order is entered this same date. Signed by District Judge Henry Edward Autrey on 10/27/15. (KJS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
WILLIAM M. TYLER, JR.,
Plaintiff,
vs.
MISSOURI BAPTIST MEDICAL
CENTER, et al.,
Defendants.

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Case No. 4:14CV1917 HEA

MEMORANDUM AND ORDER
This matter is before the Court on Defendants’ Motion for Summary
Judgment, [Doc. No. 28]. Plaintiff has not responded to the Motion. For the
reasons set forth below, the Motion is granted.
Facts and Background1

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Defendant has filed a Statement of Uncontroverted Facts. Plaintiff, in contravention of this
Court=s Local Rule 7-4.01(E), failed to specifically controvert any of Defendant=s facts.
Likewise, Plaintiff failed to present his own Statement of Uncontroverted Facts.
Local Rule 4.01(E) provides with respect to summary judgment motions:
A memorandum in support of a motion for summary judgment shall have attached a
statement of uncontroverted material facts, set forth in a separately numbered paragraph
for each fact, indicating whether each fact is established by the record, and, if so, the
appropriate citations. Every memorandum in opposition shall include a statement of
material facts as to which the party contends a genuine dispute exists. Those matters in
dispute shall be set forth with specific references to portions of the record, where
available, upon which the opposing party relies. The opposing party also shall note for all
disputed facts the paragraph number from movant's listing of facts. All matters set forth

This medical malpractice cases arises from medical and physical therapy
treatment rendered to Plaintiff by Defendant on or about November 13, 2012, in St.
Louis County, Missouri. Plaintiff alleges that Defendant breached and deviated
from the generally accepted standard of care in that Defendant negligently and
carelessly: (1) Failed to provide appropriate instruction as to physical therapy; (2)
Failed to provide sufficient staff to assist the Plaintiff in performing physical
therapy; (3) Attempted to provide physical therapy in Plaintiff’s room instead of
transferring him to a dedicated physical therapy facility; (4) Instructed Plaintiff to
hop on one leg when Defendant knew or should have known that Plaintiff would
be unable to safely support his weight on one leg; (5) Failed to assess or develop a
physical therapy plan that could be performed by Plaintiff which would not result

in the statement of the movant shall be deemed admitted for purposes of summary
judgment unless specifically controverted by the opposing party.
E.D. Mo. L.R. 4.01(E). As a result of Plaintiff's failure to submit any response, Plaintiff has not
met the requirements of Local Rule 4.01(E), and is deemed to have admitted all facts in
Defendant's Statement of Uncontroverted Facts. Turner v. Shinseki, 2010 WL 2555114, at *2
(E.D.Mo. June 22, 2010) (citing Deichmann v. Boeing Co., 36 F.Supp.2d 1166, 1168
(E.D.Mo.1999), aff'd, 232 F.3d 907 (8th Cir.2000), cert. denied, 531 U.S. 877, 121 S.Ct. 184,
148 L.Ed.2d 127)). However, Plaintiff's failure to respond properly to the motion for summary
judgment does not mean summary judgment should be automatically granted in favor of
Defendant. Even if the facts as alleged by Defendant are not in dispute, those facts still must
establish he is entitled to judgment as a matter of law. Autry Morlan Chevrolet Cadillac, Inc. v.
RJF Agencies, Inc., 332 S.W.3d 184, 191 (Mo.Ct.App.2010) (citations omitted). See also Burnett
v. Acikgoz, No. 4:13-CV-1990-JAR, 2015 WL 4603475, at *2 (E.D. Mo. July 30, 2015);
Vandergrift v. Emerson, 2012 WL 15021, at *1 (W.D.Mo. Jan. 4, 2012).
Consequently, Defendant=s Statement of Uncontroverted Facts is taken as admitted by
Plaintiff.

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in trauma to him; and (6) Otherwise was negligent and careless in providing
medical care and treatment to Plaintiff.
Plaintiff further alleges that as a direct and proximate result of the
negligence, breach of care and unskillfulness of Defendant, his left ankle was
fractured and injured.
Pursuant to this Court’s Case Management Order, Plaintiff was required to
file his expert disclosures and reports pursuant to Fed. R. Civ. P. 26(a)(2) on June
1, 2015. Plaintiff failed to do so and has not done so to date. Plaintiff was also
required to identify all witnesses and produce all required reports and information
on or before June 1, 2015. Plaintiff failed to do so and has not done so to date.
Pursuant to Fed. R. Civ. P. 37 and 26(D), Defendant moved to strike Plaintiff’s
retained and non-retained experts and to bar any untimely disclosure of opinions or
the addition of any newly identified experts, whether retained or non-retained.
In an Order dated July 29, 2015, the Court granted Defendant’s motion to
strike and preclude Plaintiff’s retained and non-retained experts. In doing so,
Plaintiff has been barred from presenting any expert testimony or opinions
concerning any breaches and/or deviations from the standard of care relating to his
medical and physical therapy treatment from Defendant.
Summary Judgment Standard

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Summary judgment is appropriate when there exists no genuine dispute as to
any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving
party has the burden to establish both the absence of a genuine dispute of material
fact and that it is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c);
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). Once the moving party
has met this burden, the nonmoving party may not rest on the allegations in his
pleadings but by affidavit or other evidence must set forth specific facts showing
that a genuine issue of material fact exists. Fed.R.Civ.P. 56(e); Anderson, 477 U.S.
at 256, 106 S.Ct. 2505; Krenik v. Le Sueur, 47 F.3d 953, 957 (8th Cir. 1995).
“‘Only disputes over facts that might affect the outcome of the suit under the
governing law will properly preclude the entry of summary judgment.’ Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).” Hitt v. Harsco Corp., 356 F.3d
920, 923 (8th Cir. 2004). To survive a motion for summary judgment, the
“nonmoving party must ‘substantiate his allegations with sufficient probative
evidence [that] would permit a finding in [his] favor based on more than mere
speculation, conjecture, or fantasy.’ Wilson v. Int'l Bus. Machs. Corp., 62 F.3d 237,
241 (8th Cir. 1995) (quotation omitted).” Putman v. Unity Health System, 348 F.3d
732, 733-34 (8th Cir. 2003). “[A] complete failure of proof concerning an essential
element of the nonmoving party's case necessarily renders all other facts
immaterial.” Celotex, 477 U.S. at 323.

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Discussion
Plaintiff alleges that Defendant breached and deviated from the generally
accepted standard of care owed to him. Under Missouri law, in order for Plaintiff
to have made a submissible case on a medical malpractice claim against
Defendant, Plaintiff must prove that Defendant failed to use the degree of skill and
learning ordinarily used under the same or similar circumstances, i.e., breached the
standard of care, and that Defendant’s negligent act or acts directly caused or
directly contributed to cause Plaintiff's injuries. Montgomery v. S. County
Radiologists, Inc., 168 S.W.3d 685, 691 (Mo. App. E.D. 2005); Washington by
Washington v. Barnes Hosp., 897 S.W.2d 611, 615 (Mo. banc 1995); Williams v.
Daus, 114 S.W.3d 351, 359 (Mo.App.S.D.2003). Furthermore, the standard must
be objective, that is, not merely the personal opinion of an expert, but the standard
that is accepted generally in the profession. Swope v. Printz, 468 S.W.2d 34 (Mo.
banc 1971). Hickman v. Branson Ear, Nose & Throat, Inc., 256 S.W.3d 120, 124
(Mo. 2008).
Thus, in the medical malpractice context, Plaintiff must present expert
testimony to establish the standard of care required in the circumstances
surrounding this action. Plaintiff does not have the benefit of any experts due to
the failure to timely disclose. As such, Plaintiff is unable to present a submissible
case and Defendant is therefore entitled to judgment as a matter of law.

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Conclusion
Plaintiff has failed to respond to Defendant’s Motion for Summary
Judgment with any evidence that the claims he presented in his Complaint entitle
him to the relief requested. Defendants are entitled to judgment as a matter of law.
Accordingly,
IT IS HEREBY ORDERED that Defendants’ Motion for Summary
Judgment, [Doc. No. 28], is granted.
A separate judgment in accordance with this Opinion, Memorandum and
Order is entered this same date.
Dated this 27th day of October, 2015.

_______________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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