Ely v. United States Government

Filing 28

ORDER granting 16 Motion for Summary Judgment; denying 17 Motion for Summary Judgment; adopting Findings and Recommendations re 26 Findings and Recommendations. Signed by Chief Judge Dana L. Christensen on 10/9/2013. (dle)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BUTTE DIVISION
JAMES M. ELY,

CV 12–63–BU–DLC
Plaintiff,

vs.

ORDER

UNITED STATES OF AMERICA,
Defendants.

United States Magistrate Judge Carolyn S. Ostby entered Findings and
Recommendations on August 19, 2013, recommending that the United States’
motion for summary judgment be granted. Ely failed to timely object to the
Findings and Recommendations, and so waived the right to de novo review of the
record. 28 U.S.C. § 636(b)(1). Ordinarily, the Court would therefore review the
record for clear error. McDonnell Douglas Corp. v. Commodore Bus. Mach., Inc.,
656 F.2d 1309, 1313 (9th Cir. 1981). Ely is proceeding pro se. Although not
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required to do so, this Court will review de novo the specified findings and
recommendations to which Ely objects. Because the parties are familiar with the
facts of the case, they will only be discussed as necessary to explain the Court’s
ruling. The Court adopts Judge Ostby’s findings and recommendations in full.
In his objections, Ely again asserts that no medical expert testimony is
required for his medical malpractice claim. He argues that he can prove medical
malpractice on the part of the Veteran Affairs doctor who determined that Ely was
not a good candidate for surgery by offering only his own lay witness testimony
that his shoulder injury improved after another doctor decided to perform surgery
on his shoulder. For precisely the reasons explained by Judge Ostby, however,
Ely’s claim requires expert medical testimony in order to survive the United
States’ motion for summary judgment. In this case, expert medical testimony is
required to (1) establish the applicable standard of care owed Ely, and (2) establish
a deviation from that standard of care. Montana Deaconess Hosp. v. Gratton, 545
P.2d 670, 672 (Mont. 1976). Because Ely has failed to identify any expert who
will so testify, his claims fail as a matter of law.
Accordingly, IT IS ORDERED that Judge Ostby’s Findings and
Recommendations (doc. 26) are ADOPTED in full. The United States’ motion for
summary judgment (Doc. 16) is GRANTED. Ely’s motion for summary judgment
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(Doc. 17) is DENIED. All of Plaintiff’s claims are DISMISSED and this case is
CLOSED.
Dated this 9th day of October 2013.

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