Hunt v. Johns et al

Filing 34

MEMORANDUM AND ORDER - The Motion for Summary Judgment (Filing No. 29 ) filed by defendant Monument Vision, PC, is granted. Defendant Monument Vision, PC, is dismissed from this case with prejudice. Final judgment shall be withheld pending resolution of the remaining claims against the remaining defendants in this case. Ordered by Senior Judge Richard G. Kopf. (KLF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
LARRY HUNT,

)
)
Plaintiff,
)
)
v.
)
)
RON JOHNS, as an Individual and in )
his capacity as Director of the Scotts )
Bluff County Adult Detention Center, )
SCOTTS BLUFF COUNTY,
)
MONUMENT VISION, PC,
)
OREGON TRAIL EYE CENTER,
)
PC, and JOHN DOES 1-99,
)
)
Defendants.
)
)

4:17CV3023

MEMORANDUM
AND ORDER

Plaintiff Larry Hunt brings this action asserting claims under 42 U.S.C. § 1983
against defendants Ron Johns, Scotts Bluff County, and John Does 1-99 for these
defendants’ policy or custom of ignoring inmates’ serious medical needs—in this
case, an eye condition that has allegedly severely impaired Plaintiff’s vision—and
failure to train jail employees to recognize serious medical needs. (Filing No. 1 at
CM/ECF pp. 14-17.) Plaintiff asserts state-law negligence claims against these
defendants, as well as against an optometry practice, Monument Vision, PC
(“Monument”), and an ophthalmology practice, Oregon Trail Eye Center, PC. (Filing
No. 1 at CM/ECF pp. 11-14.) Monument has filed a Motion for Summary Judgment
(Filing No. 29) as to the only claim asserted against it—professional negligence under
Nebraska law.1 Plaintiff has not responded to Defendant’s motion.
1

Plaintiff’s Complaint alleges that he also brings his professional negligence
claim against Monument under the Nebraska Hospital-Medical Liability Act, Neb.
Rev. Stat. §§ 44-2801 to 44-2855 (Westlaw 2017). (Filing No. 1 at CM/ECF p. 19 ¶¶
96-97.) However, it is not clear to the court that optometrists fit within the definitions
of those covered by the Act. Neb. Rev. Stat. §§ 44-2803, -2804, -2806 (definitions

Motion for Summary Judgment Filed by Monument Vision, PC
Plaintiff alleges that Monument’s medical staff was professionally negligent
when it failed to “impress immediately upon jail staff that the Plaintiff’s detached
retina, diagnosed by Monument Vision on April 20, 2015, was a serious medical need
that warranted immediate attention from an Ophthalmologist” and when it failed to
“refer the Plaintiff to an Ophthalmologist for immediate further care.” (Filing No. 1
at CM/ECF pp. 12-13.) Monument moves for summary judgment on this claim,
arguing that under Nebraska law, Plaintiff must proffer expert testimony to support
his action for professional negligence, which he has failed to do; that Monument has
filed the affidavits of two optometrists who state that Dr. Schneider at Monument did
not violate the applicable standard of care in its treatment of Plaintiff; and that a
defendant is entitled to summary judgment when a plaintiff fails to prove, by expert
testimony, any departure from the recognized standard of care. (Filing No. 30, Br.
Supp. Def.’s Mot. Summ. J.)
Because Plaintiff did not respond to Monument’s motion for summary
judgment, Monument’s statement of undisputed material facts is considered admitted.
NECivR 56.1(b)(1).
1.
Dr. Robert S. Vandervort, O.D., F.A.A.O., is a board-certified
optometrist, and Dr. Jill A. Schneider, O.D., was the president and owner of

of “health care provider,” “physician,” “hospital”); Waddell v. Osterholm, No.
8:14-CV-264, 2016 WL 6216137, at *2 (D. Neb. Jan. 25, 2016) (“the Nebraska
Hospital-Medical Liability Act, Neb. Rev. Stat § 44-2828, . . . applies more
specifically to physicians”). In any event, whether or not Plaintiff’s professional
negligence claim against Monument falls under the Act or common law is irrelevant
to the issues discussed here. Neb. Rev. Stat. § 44-2821(1) (Westlaw 2017) (“Any
health care provider who fails to qualify under the Nebraska Hospital-Medical
Liability Act shall not be covered by the provisions of such act and shall be subject
to liability under doctrines of common law.”) The parties do not argue otherwise.
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Monument Vision, P.C., who treated Plaintiff. Both optometrists have filed affidavits
in support of Monument’s motion for summary judgment. (Filing No. 31.)
2.
Both Dr. Vandervort and Dr. Schneider are familiar with the generally
recognized standards of care applicable to treating patients, including Plaintiff, at all
relevant times, including April 20, 2015. (Filing No. 31-1, Aff. R. Vandervort ¶ 5;
Filing No. 31-3, Aff. J. Schneider ¶ 5.)
3.
These standards of care are applicable to optometrists in the relevant
geographical area, such as Dr. Schneider and Monument Vision. (Filing No. 31-1, Aff.
R. Vandervort ¶ 5; Filing No. 31-3, Aff. J. Schneider ¶ 6.)
4.
Both Dr. Vandervort and Dr. Schneider are familiar with the facts of
Plaintiff’s medical care, including the care rendered by Dr. Schneider and Monument
Vision on April 20, 2015. (Filing No. 31-1, Aff. R. Vandervort ¶ 4; Filing No. 31-3,
Aff. J. Schneider ¶ 7.)
5.
In examining, testing, and treating Plaintiff, Monument Vision and Dr.
Schneider did not depart from the appropriate standards of care. (Filing No. 31-1, Aff.
R. Vandervort ¶ 5; Filing No. 31-3, Aff. J. Schneider ¶ 8.)
Standard of Review
“A party may move for summary judgment, identifying each claim or
defense—or the part of each claim or defense—on which summary judgment is
sought. The court shall grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law. The court should state on the record the reasons for granting or denying
the motion” Fed. R. Civ. P. 56(a).
In ruling on a motion for summary judgment, the court must view the evidence
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in the light most favorable to the non-moving party, giving that party the benefit of
all inferences that may be reasonably drawn from the evidence. See Dancy v. Hyster
Co., 127 F.3d 649, 652-53 (8th Cir. 1997). It is not the court’s function to weigh
evidence in the summary judgment record to determine the truth of any factual issue;
the court merely determines whether there is evidence creating a genuine issue for
trial. See Gray v. FedEx Ground Package Sys., Inc., 799 F.3d 995, 999 (8th Cir.
2015).
The moving party bears the burden of showing there are no genuine issues of
material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). This burden
“may be discharged by ‘showing’—that is, pointing out to the district court—that
there is an absence of evidence to support the nonmoving party’s case.” Id. at 325.
The burden then shifts to the nonmoving party, who “may not rest upon mere
allegation or denials of his pleading, but must set forth specific facts showing that
there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256
(1986). If the nonmoving party fails “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,” the
movant is entitled to summary judgment. Celotex Corp., 477 U.S. at 322.
Discussion
Monument’s argument in support of its motion for summary judgment is that,
in professional negligence cases, Nebraska law dictates that “an affidavit offered by
the defendant indicating there was no breach of the standard of care is prima facie
evidence entitling a defendant to judgment as a matter of law where a plaintiff offers
no expert testimony to the contrary.” (Filing No. 30 at CM/ECF p. 6.) Because
Monument has presented such affidavits, and because Plaintiff has not responded,
Monument believes it is entitled to summary judgment on the negligence claim
against it.
Monument’s argument raises many issues, none of which are addressed by
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either party: (1) this court’s jurisdiction over Plaintiff’s state-law negligence claim;
(2) whether the Erie rule applies in a non-diversity case like this; (3) if so, whether
Nebraska’s rule that expert testimony is required to identify the applicable standard
of care in professional negligence cases applies to the Monument optometrist’s actions
in this case; (4) whether Nebraska’s rule that an affidavit offered by a defendant
indicating there was no breach of the standard of care is prima facie evidence entitling
the defendant to judgment as a matter of law where a plaintiff offers no expert
testimony to the contrary is “substantive” or “procedural”; and (5) whether this rule
applies in this court such that Monument is entitled to summary judgment. I shall
address each of these matters in turn.
Under 28 U.S.C. § 1367(a), this court has supplemental jurisdiction over
Plaintiff’s pendent state-law negligence claim against defendant Monument Vision,
PC, which arose out of the same incident as the underlying § 1983 claim. Franklin
v. Zain, 152 F.3d 783, 786 (8th Cir. 1998). Courts considering a state-law claim based
on supplemental jurisdiction apply federal procedural law and state substantive law.
Witzman v. Gross, 148 F.3d 988, 990 (8th Cir. 1998) (“When considering . . .
supplemental state-law claims, we are bound by Minnesota law.”); Smith v. Planned
Parenthood of St. Louis Region, 225 F.R.D. 233, 237-38 (E.D. Mo. 2004) (Erie rule
that federal court sitting in diversity must apply state substantive law and federal
procedural law “applies equally in the context of pendent jurisdiction over
supplemental state law claims,” with the goal of ensuring “that the outcome of the
litigation in federal court will be substantially the same as if the case were being tried
in state court”).
In Nebraska professional negligence cases, “[t]he general rule is that expert
testimony is required to identify the applicable standard of care.” Bixenmann v.
Dickinson Land Surveyors, Inc., 882 N.W.2d 910, 916, opinion modified on denial of
reh’g, 886 N.W.2d 277 (Neb. 2016) (negligence by land surveyors); see also Thone
v. Reg’l W. Med. Ctr., 745 N.W.2d 898, 903 (Neb. 2008) (medical malpractice);
Overland Constructors, Inc. v. Millard Sch. Dist., Sch. Dist. No. 17, 369 N.W.2d 69,
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76 (Neb. 1985) (negligence by architect).
In determining whether a particular act or service is “professional” in nature for
purposes of Nebraska professional negligence law, “the court must look to the nature
of the act or service itself and the circumstances under which it was performed.”
Bixenmann v. Dickinson Land Surveyors, Inc., 886 N.W.2d 277, 278 (Neb. 2016).
A professional negligence claim calls into question the conduct of the
professional in his area of expertise. Administrative, clerical, or routine
acts demanding no special expertise fall in the realm of simple
negligence. If the allegations of the complaint involve the exercise of
professional skill and judgment within the professional’s area of
expertise and go to the propriety of professional decisions rather than to
the efficacy of the professional’s conduct in carrying out decisions
previously made, the claim sounds in professional negligence rather than
ordinary negligence.
Bixenmann, 886 N.W.2d at 278-79 (internal quotation marks and citations omitted).
In this case, Plaintiff alleges that “Monument Vision diagnosed a detached
retina, and referred the Plaintiff to Oregon Tr[ai]l.” (Filing No. 1 at CM/ECF p. 7 ¶
43.) Plaintiff also alleges that Monument “failed to . . . impress immediately upon jail
staff that the Plaintiff’s detached retina . . . was a serious medical need that warranted
immediate attention from an Ophthalmologist” and further neglected to “refer the
Plaintiff to an Ophthalmologist for immediate further care.” (Filing No. 1 at CM/ECF
pp. 12-13 ¶ 72.) Clearly, the actions that form the basis of Plaintiff’s negligence claim
against Monument—diagnosing a detached retina and concluding that a patient needs
further ophthalmological care—are ones that required “the exercise of professional
skill and judgment within the professional’s area of expertise” and cannot be
characterized as “[a]dministrative, clerical, or routine acts demanding no special
expertise.” Bixenmann, 886 N.W.2d at 278-79.
Because Monument’s actions (or failures to act) qualify as “professional acts”
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under Nebraska law, expert testimony is required to establish the standard of care.
Bixenmann, 886 N.W.2d at 279 (“We conclude that the act complained of qualified
as a professional act and required expert testimony to establish the standard of care.”);
see also 1 Neb. Prac., NJI2d Civ. 1.42 (Westlaw 2017) (“Outside of the context of
medical malpractice, anyone practicing a trade must exercise the skill and care
normally possessed by members of that trade who are in good standing in the same
community. As a general rule, this requires evidence of the skill and care normally
possessed by members of the trade in the community in question—evidence of the
applicable standard of care. Often this will require expert testimony of the standard
for the trade in the community.”).
Furthermore, Nebraska case law provides that when a defendant medical
professional presents an affidavit stating “that he or she met the standard of care,” the
affidavit “presents a prima facie case of lack of negligence for summary judgment
purposes,” shifting the burden to the plaintiff “to present expert testimony to show that
an issue of material fact exists and that it prevents summary judgment as a matter of
law.” Cerny v. Longley, 708 N.W.2d 219, 224 (Neb. 2005); see also Thone v. Reg’l
W. Med. Ctr., 745 N.W.2d 898, 903 (Neb. 2008) (“At the summary judgment stage,
it is well settled that such self-supporting affidavits suffice to make a prima facie case
that the defendants did not commit medical malpractice. As such, [the defendant
physicians’] affidavits shifted the burden to the [plaintiffs] to provide sufficient
evidence to establish a prima facie case of medical malpractice.”); Wagner v. Pope,
531 N.W.2d 234, 236-37 (Neb. 1995) (“[A]n affidavit of the defendant physician in
a malpractice case, which affidavit states that the defendant did not breach the
appropriate standard of care, presents a prima facie case of lack of negligence for the
purposes of summary judgment. The burden then shifts to plaintiff to show that an
issue of material fact exists and that that fact prevents judgment as a matter of law.”
(internal citations omitted)).
The question then becomes whether these Nebraska “rules”—that expert
testimony is required to establish the standard of care and the plaintiff must present
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expert testimony showing the existence of an issue of material fact in response to a
defendant medical professional’s affidavit stating that the defendant has met the
standard of care—are “substantive” and therefore applicable in this court.
Courts in the Eighth Circuit have concluded that similar state expert-testimony
requirements constitute “substantive” law, making them applicable in federal court.
Smith, 225 F.R.D. at 238-42 (Missouri statute requiring medical-malpractice plaintiffs
to file affidavit with court containing written opinion of qualified health care provider
stating that defendant failed to use standard of care and such omission caused
plaintiff’s damages was substantive state law applicable in federal district court sitting
in diversity because statute was “outcome determinative on its face,” designed to “cull
at an early stage of litigation meritless suits against health care providers,” and failure
to apply statute would produce different outcome than in state proceeding on same
claim and could lead to forum shopping (internal quotations omitted)); see also Moore
v. Ernest-Jackson, 16 Fed. App’x 517 (8th Cir. 2001) (prison inmate’s state-law
claims were properly dismissed for failure to comply with Missouri health care
affidavit statute); Weasel v. St. Alexius Medical Center, 230 F.3d 348 (8th Cir. 2000)
(district court was required to dismiss malpractice action under North Dakota law
where plaintiff failed to file expert affidavit); Carmen v. Mayo Found., 81 F.3d 165,
1996 WL 137272, *1 (8th Cir. 1996) (unpublished per curiam) (district court properly
dismissed malpractice action with prejudice under Minnesota law where plaintiff
failed to comply with Minnesota’s expert affidavit requirements); Bellecourt v. United
States, 994 F.2d 427 (8th Cir. 1993) (district court did not err in dismissing medical
malpractice claim with prejudice for failure to file expert affidavit required under
Minnesota law); Morlan v. Harrington, 658 F. Supp. 24 (D.N.D. 1986) (applying
North Dakota expert affidavit statute in diversity case; the “logical vehicle” to seek
dismissal of medical negligence action for failure to provide expert affidavit, as
required by state statute, was to bring Fed. R. Civ. P. 56 motion for summary
judgment).
Like the courts cited above, I conclude that Nebraska’s expert-testimony
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requirement for professional negligence actions is substantive and therefore applicable
in federal court. See, e.g., Hunt v. United States, No. 4:09CV3134, 2010 WL
11545692, at *6 (D. Neb. Oct. 29, 2010), aff’d, 417 F. App’x 577 (8th Cir. 2011)
(applying Nebraska law that self-supporting affidavits suffice to make prima facie
case that defendants did not commit medical malpractice as substantive law in Federal
Tort Claims Act claim in federal district court). Because Monument has offered
affidavits indicating that it did not breach the standard of care, and because Plaintiff
has failed to prove by expert testimony (or by any evidence whatsoever) any departure
from the recognized standard of care, Monument is entitled to judgment as a matter
of law as to Plaintiff’s negligence claim against it.2
Accordingly,
IT IS ORDERED:
1.
The Motion for Summary Judgment (Filing No. 29) filed by defendant
Monument Vision, PC, is granted;
2.
Defendant Monument Vision, PC, is dismissed from this case with
prejudice; and
2

Monument does not request that the court enter a Fed. R. Civ. P. 54(b)
judgment as to Plaintiff’s claim against Monument, nor do I believe it would be
appropriate to do so since “[c]ertification should be granted only if there exists some
danger of hardship or injustice through delay which would be alleviated by immediate
appeal,” neither of which is apparent here. Huggins v. FedEx Ground Package Sys.,
Inc., 566 F.3d 771, 774 (8th Cir. 2009) (internal quotation marks and citation
omitted). This is especially so since all claims in this case stem from the same factual
allegations. Id. at 774-75 (“We . . . conclude that [j]udicial economy will best be
served by delaying appeal until all issues can be confronted by this court in a unified
package. Such a course is particularly desirable where [as here] the adjudicated and
pending claims are closely related and stem from essentially the same factual
allegations.” (internal quotation marks and citation omitted)).
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3.
Final judgment shall be withheld pending resolution of the remaining
claims against the remaining defendants in this case.
DATED this 20th day of November, 2017.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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