Mailhot v. American Red Cross

Filing 18

///ORDER granting 14 ARC's Motion for Summary Judgment. So Ordered by Judge Steven J. McAuliffe.(lat)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Larry R. Mailhot,
Plaintiff
v.

Case No. 12-cv-103-SM
Opinion No. 2013 DNH 103

American Red Cross,
Defendant
O R D E R
Pro se plaintiff, Larry Mailhot, brings this action against
the American Red Cross (“ARC”), seeking damages for injuries he
says he suffered when he donated blood platelets at an ARC
donation center.

Mailhot claims to have sustained permanent

injuries, including nerve damage, as a result of ARC’s negligent
placement of a needle in his right arm.

ARC moves for summary

judgment, on grounds that Mailhot has failed to disclose an
expert witness and, under applicable state law, that failure is
fatal to his medical negligence (malpractice) claims.

For the reasons stated, the court is constrained to agree
that, as a matter of law, Mailhot cannot sustain his burden of
proof without a medical expert.

Accordingly, ARC’s motion for

summary judgment is necessarily granted.

Standard of Review
When ruling on a motion for summary judgment, the court must
“view the entire record in the light most hospitable to the party
opposing summary judgment, indulging all reasonable inferences in
that party’s favor.”
(1st Cir. 1990).

Griggs-Ryan v. Smith, 904 F.2d 112, 115

Summary judgment is appropriate when the record

reveals “no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
P. 56(a).

Fed. R. Civ.

In this context, “a fact is ‘material’ if it

potentially affects the outcome of the suit and a dispute over it
is ‘genuine’ if the parties’ positions on the issue are supported
by conflicting evidence.”

Int’l Ass’n of Machinists & Aerospace

Workers v. Winship Green Nursing Ctr., 103 F.3d 196, 199-200 (1st
Cir. 1996) (citations omitted).

Mailhot has not objected to ARC’s motion for summary
judgment.1

Accordingly, the court will take as admitted the

factual statements recited in that motion, as supported by the
attached exhibits.

See Local Rule 7.2(b)(2) (“All properly

supported material facts set forth in the moving party’s factual
statement shall be deemed admitted unless properly opposed by the

1

On May 3, 2013, Mailhot filed an assented-to motion,
seeking additional time (until June 7) to object to ARC’s motion
for summary judgment. The court granted that motion, but Mailhot
never filed an objection.
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adverse party.”).

See also Cordi-Allen v. Halloran, 470 F.3d 25,

28 (1st Cir. 2006); McCrory v. Spigel (In re Spigel), 260 F.3d
27, 31 (1st Cir. 2001).

It does not, however, “automatically

follow” that ARC is entitled to summary judgment.

Stonkus v.

City of Brockton Sch. Dep’t, 322 F.3d 97, 101 (1st Cir. 2003).
The court must still determine whether the uncontested facts
presented by ARC, when viewed in the light most favorable to
Mailhot, entitle ARC to judgment as a matter of law.

Id. at 102

(citing Fed. R. Civ. P. 56(e)).

Background
On February 25, 2010, Mailhot donated platelets at an ARC
donation center in Manchester, New Hampshire.

As part of that

process, he reviewed and signed both a generic blood donor
consent form and a more specific informed consent form for
apheresis blood collection.

See Exhibits B1 and B3 to

Defendant’s Memorandum (documents no. 14-5 and 14-7).

Both

documents advised him of the risks associated with blood
donations, which included the rare possibility of nerve or
arterial damage.

The procedure lasted about 90 minutes, during which an ARC
phlebotomist checked on Mailhot three times.

Each time, she

checked a box on a form that reported Mailhot was “ok.”

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See

Apheresis Procedure Record (document no. 14-6) at 3.

At his

deposition, Mailhot testified that when he left the donation
center, he felt “great.”
no. 14-3) at 77.

Deposition of Larry Mailhot (document

Subsequently, however, Mailhot began

experiencing pain in his right arm.

He says his primary care

physician referred him to a specialist in the Department of
Neurology at Dartmouth Hitchcock Manchester.
para. 16.

See Complaint at

Moreover, says Mailhot, he “received no physical

relief from the right arm pain or function [sic] resulting from
medical treatments.”

Id. at para. 17.

Importantly, however, he

does not describe how (or even whether) the consulting specialist
diagnosed his injury, nor does he assert that the specialist
concluded there was a causal relationship between the injury and
ARC’s alleged negligence.

Construed in the light most favorable to Mailhot, the
complaint advances three common law negligence (medical
malpractice) claims: first, that employees or agents of ARC
negligently inserted a needle into his right arm, which resulted
in permanent and painful nerve injury; second, that ARC failed to
adequately warn him of the potential risks associated with
donating platelets - that is to say, he did not give “informed
consent” to the procedure; and, finally, that ARC negligently
trained the phlebotomist who inserted the needle into his arm.

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Discussion
New Hampshire law provides that in any “action for medical
injury” against a “medical care provider,” the plaintiff:
shall have the burden of proving by affirmative
evidence which must include expert testimony of a
competent witness or witnesses:
(a) The standard of reasonable professional
practice in the medical care provider’s profession
or specialty thereof, if any, at the time the
medical care in question was rendered; and
(b) That the medical care provider failed to act
in accordance with such standard; and
(c) That as a proximate result thereof, the
injured person suffered injuries which would not
otherwise have occurred.
N.H. Rev. Stat. Ann. (“RSA”) 507-E:2, I (emphasis supplied).
Similarly, if a plaintiff asserts that “a medical care provider
failed to supply adequate information to obtain the informed
consent of the injured person,” that claim, too, must be
supported by expert witness testimony.

RSA 507-E:2, II.

Should

a plaintiff fail to disclose such an expert, he cannot sustain
his burden of proof and his claims are subject to summary
disposition.

See, e.g., Dent v. Exeter Hosp., Inc., 155 N.H. 787

(2007) (affirming trial court’s entry of summary judgment in
favor of defendant, based on fact that plaintiff failed to
disclose an expert witness); Bissett v. Renna, 142 N.H. 788

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(1998) (affirming dismissal of medical negligence claim for
failure to provide competent expert witness testimony).

So it is in this case.

Mailhot has not disclosed an expert

medical witness to support his medical malpractice claims against
ARC.

The time for disclosing expert witnesses lapsed more than

five months ago and Mailhot never sought to extend that deadline.
Consequently, as a matter of New Hampshire law, ARC is entitled
to summary judgment on all claims advanced in Mailhot’s
complaint.

Parenthetically, the court notes that neither party has
addressed whether ARC is a “medical care provider,” as defined in
RSA 507-E:1, II (thereby implicating the expert witness
requirements set forth in RSA 507-E:2).

But, even if ARC does

not meet that statutory definition, the resolution of its motion
for summary judgment remains the same.

In short, Mailhot claims

he was the victim of medical malpractice when an ARC phlebotomist
negligently inserted a needle into his right arm.

Even absent

the statutory requirements of RSA ch. 507-E, he would still be
required to introduce expert medical testimony to prove his case,
since determining whether the phlebotomist violated the relevant
standard of care and proximately caused Mailhot’s injuries is
“plainly beyond the knowledge and experience of a lay jury; it

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requires the application of special experience and training.”
Brann v. Exeter Clinic, Inc., 127 N.H. 155, 159 (1985) (citing
Michael v. Roberts, 91 N.H. 499, 501 (1941)).

See also Martin v.

Wentworth-Douglass Hosp., 130 N.H. 134 (1987) (affirming trial
court’s dismissal of malpractice claims arising out of
phlebotomist’s alleged negligence, when plaintiff failed to
produce expert testimony on the issues of negligence and
causation at trial).

Conclusion
For the foregoing reasons, as well as those set forth in
defendant’s memorandum, ARC’s motion for summary judgment
(document no. 14) is granted.

The Clerk of Court shall enter judgment in accordance with
this order and close the case.
SO ORDERED.
____________________________
Steven J. McAuliffe
United States District Judge
July 25, 2013
cc:

Larry R. Mailhot, pro se
CharCretia V. Di Bartolo, Esq.
Geoffrey M. Coan, Esq.
Paula-Lee Chambers, Esq.

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