G.C.W. et al v. United States of America (U.S. Dept. of Health and Human Services) et al

Filing 85

MEMORANDUM OPINION AND ORDER re: 54 MOTION for Partial Summary Judgment filed by G.C.W. : For the foregoing reasons, this Court DENIES Plaintiffs' Motion for Partial Summary Judgment. (Signed by Magistrate Judge Katharine H. Parker on 3/8/2017) (jwh) Modified on 3/8/2017 (jwh).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
3/8/2017
G.C.W., an infant by his mother and natural
guardian, MICHELLE RIVERA,
MEMORANDUM OPINION AND ORDER
Plaintiffs,
1:15 cv 00294 (KHP)
– against –
UNITED STATES OF AMERICA,
Defendant.

KATHARINE H. PARKER, United States Magistrate Judge
Plaintiff G.C.W. (“Plaintiff”), an infant by his mother and natural guardian, Michelle
Rivera, commenced this medical malpractice action against Defendant United States of America
under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346(b). Plaintiff alleges that Urban
Health Plans, Inc. (“UHP”), a federally scoped health clinic, was negligent in its provision of
prenatal care to Ms. Rivera, which resulted in injuries to the then unborn Plaintiff. Plaintiff now
moves for partial summary judgment pursuant to Federal Rule of Civil Procedure 56 (“Rule 56”).
For the reasons that follow, Plaintiff’s motion is DENIED.1

1

On or about April 22, 2015, the parties consented to proceed before a U.S. Magistrate Judge for all proceedings in
the case. (Doc. No. 8.) The case was initially assigned to Magistrate Judge Debra Freeman, and was reassigned to
the undersigned on November 10, 2016.

1

BACKGROUND
I.

Ms. Rivera’s Hyperglycemia
Beginning on August 30, 2013, Plaintiff’s mother, Ms. Rivera, received prenatal care

from UHP, which is located in the Bronx, New York. On January 10, 2014, a UHP physician
ordered a one hour glucose challenge test for Ms. Rivera. This test resulted in a laboratory
finding that Ms. Rivera’s glucose levels were higher than UHP’s normal reference range. UHP
did not advise Ms. Rivera of her high glucose reading until February 7, 2014.
On February 7, 2014, Ms. Rivera returned to UHP and was ordered to undergo a follow
up three hour glucose test. The three hour glucose test was performed on February 10, 2014.
The test revealed that Ms. Rivera’s glucose levels exceeded the normal range (i.e., that she was
hyperglycemic) and that she suffered from gestational diabetes. It is undisputed that, given Ms.
Rivera’s test results, her pregnancy would be classified as high risk. Under such circumstances,
UHP’s policy was to transfer a mother with gestational diabetes to a hospital for further
treatment. However, this did not occur in this case.2
On February 12, 2014 at approximately 7:00 p.m., Ms. Rivera went to Montefiore
Hospital (“Montefiore”) on her own accord because she was complaining of no fetal movement
for that day, decreased fetal movement for the prior three days, nausea, vomiting, increased
thirst, and urination.3 She was approximately 31 weeks pregnant with Plaintiff at this time. At
7:50 p.m., Montefiore admitted Ms. Rivera and diagnosed her with hyperglycemia. Shortly

2

The parties dispute whether Ms. Rivera was notified of the results of her three hour glucose test. This dispute is
immaterial for purposes of Plaintiff’s motion for partial summary judgment, however, because the parties have
stipulated that UHP deviated from the appropriate standards in its care of Ms. Rivera. (Doc. No. 70.)
3

The parties stipulated that Defendant’s care of Ms. Rivera ceased upon her admission to Montefiore. (Doc. No.
70.)

2

thereafter, Montefiore began treating Ms. Rivera with insulin and her glucose levels began to
gradually lower.
II.

Plaintiff’s Injuries
On February 13, 2014, while Ms. Rivera’s glucose levels were trending downward

towards the normal range, Plaintiff was recorded as having an intrauterine biophysical profile
(“BPP”) score of 8/8 at or around 1:35 a.m.4 A BPP score is “a measure of intrauterine fetal
health that incorporates assessments of fetal movement, fetal tone, fetal breathing
movements, amniotic fluid volume, and fetal heart rate.” (Declaration of Jeffrey P. Phelan
(“Phelan Decl.”) (Doc. No. 68) ¶ 10.) According to Defendant’s expert, Dr. Jeffrey Phelan, a BPP
score of 8/8 is normal and indicates a healthy fetus.5
At approximately 9:30 a.m. on February 13, 2014, Plaintiff was recorded as having a BPP
score of 6/8. Later that day, at around 8:39 p.m., Plaintiff was recorded as having a BPP score
of 2/10.
At approximately 10:45 p.m. on February 13, 2014, Montefiore records reflect that its
personnel spoke to Ms. Rivera about concerns regarding Plaintiff’s neurological status.
Montefiore’s records state that it was anticipated that the “issue of whether a delivery would
help or whether in utero recovery is expected” would come to the forefront the next day.
(Montefiore 0606.)6 At 3:53 a.m. on February 14, 2014, Montefiore records reflect that Ms.

4

Plaintiff had previously recorded a BPP score of 2/10 on February 12, 2014.

5

In Plaintiff’s Response to Defendant’s Statement of Additional Material Facts and in his reply brief, Plaintiff
disputes that a BPP score of 8/8 indicates a healthy and normal fetus, but he does not cite any medical authority to
support his proposition.
6

The records also reflect that Montefiore counseled Ms. Rivera about how “sometimes with such elevated
glucose, pregnancy suffers [intrauterine fetal demise] from hyperglycemia.” (Id.) The Court notes that

3

Rivera stated she did not want intrauterine fetal demise and that she “wants the baby out.”
(Montefiore 0607.) Montefiore subsequently performed a cesarean section on Ms. Rivera and
delivered Plaintiff at 4:12 a.m. Plaintiff, who weighed 3 pounds, nine ounces, required
resuscitation and intubation after birth. Plaintiff was admitted to Montefiore’s Neonatal
Intensive Care Unit. Neurological evaluations conducted after birth indicated that Plaintiff’s
brain was severely damaged. Plaintiff was subsequently diagnosed with spastic quadriparesis,
severe cognitive impairment, cortical blindness, seizures, and spasms.
Plaintiff and Defendant proffer different versions of the facts leading up to Plaintiff’s
birth.
A.

Plaintiff’s Expert’s Position

In the view of Plaintiff’s expert, Dr. Kaleb Yohay, Ms. Rivera’s hyperglycemia contributed
to Plaintiff’s brain injury. Dr. Yohay sets forth three interrelated theories of causation: (1) Ms.
Rivera’s hyperglycemia caused cell death in Plaintiff’s brain; (2) Ms. Rivera’s hyperglycemia
damaged Plaintiff’s brain, which exacerbated any subsequent brain traumas; and (3) the
hyperglycemia led to Plaintiff’s premature birth. As to the first two theories, Dr. Yohay testified
at his deposition that:
the hyperglycemia that [Plaintiff] was exposed to essentially predisposes the brain
towards cell death by build up of lactate and hypervolemia . . . that by itself could
lead to cell death, necrosis . . . . There may have also been acute injuries
superimposed on top of that. But it’s not really possible to separate out one from
the other. And the acute injury was in my opinion exacerbated if there was an
acute injury it was exacerbated or essentially caused by this chronic issue of
hyperglycemia.

Montefiore’s concerns about the risks associated with Ms. Rivera’s hyperglycemia, which were rendered
concurrent with treatment, are consistent with the opinion proffered by Plaintiff’s expert.

4

(Deposition of Kaleb Yohay, M.D. (“Yohay Dep. Tr.”) 57:3 16; see also Yohay Dep. Tr.
47:14 17.)
As to the third theory, Dr. Yohay further explained:
[t]he hyperglycemia led to a variety of physiologic changes within the baby and
baby’s brain that led the baby to be in distress which led to the premature birth,
and which contributed to the asphyxia and the inability to let the brain [] respond
appropriately to periods of anoxia. So they’re all sort of interrelated and
intertwined and all resulted in a brain injury.
(Yohay Dep. Tr. 88:7 16.)
B.

Defendant’s Experts’ Positions

To rebut Dr. Yohay’s findings, Defendant retained two expert witnesses, Dr. Phelan and
Dr. Walter Molofsky. Dr. Phelan and Dr. Molofsky each prepared a report summarizing their
respective opinions, was deposed by Plaintiff’s counsel, and submitted a Declaration in
opposition to Plaintiff’s motion for summary judgment. The crux of Dr. Phelan’s and Dr.
Molofsky’s opinions is that Ms. Rivera’s hyperglycemia did not cause or contribute to Plaintiff’s
injuries.
1. Dr. Phelan
In the Declaration of Jeffrey Phelan (the “Phelan Declaration”) submitted in opposition
to Plaintiff’s motion for summary judgment, Dr. Phelan opines that, while under the care of
Montefiore, Plaintiff fully recovered from the effects of his mother’s earlier untreated
hyperglycemia, and then an independent event caused Plaintiff’s injuries shortly before his
birth. Specifically, Dr. Phelan asserts:

5

Plaintiff had fully recovered from his mother’s earlier untreated hyperglycemia
and was neurologically normal at the time he recorded the BPP score of 8/8 in
the early morning of February 13, 2014.
Since Plaintiff fully recovered at Montefiore, “any deviation from the standard of
care by healthcare providers at [UHP] had no impact on the injuries
subsequently sustained by [Plaintiff.]” (Phelan Decl. ¶ 12.)
Plaintiff’s condition “most likely resulted from a hypoxic event that commenced
no earlier than 3:32 a.m. on February 14, 2014, and . . . not the earlier maternal
hyperglycemia.” (Phelan Decl. ¶ 17.)
Based upon a review of the medical records and Plaintiff’s cord gas levels,
Plaintiff’s “asphyxia began between 3:32 a.m. and 3:48 a.m. on February 14,
2014; and his brain damage arose subsequent to 3:32 a.m. and prior to his birth
at 4:12 a.m.” (Phelan Decl. ¶ 13.)
The Neonatal Encephalopathy Committee of the American College of
Obstetricians and Gynecologists and the American Academy of Pediatrics
(“ACOG/AAP”) has published guidelines for defining intrapartum asphyxia
sufficient to produce cerebral palsy. Based upon these guidelines and a review
of Plaintiff’s medical records, Plaintiff’s “birth and neonatal course satisfied the
ACOG/AAP criteria for his brain injury to have arisen intrapartum or at the time
immediately prior to his birth.” (Phelan Decl. ¶¶ 14 16.)
In his expert report dated March 28, 2016, Dr. Phelan further opined, inter alia, that
UHP did not contribute to or cause Plaintiff’s injuries because Plaintiff’s “brain damage and
6

organ impairment arose at Montefiore Medical Center at, or around the time of his birth,
and/or was contributed to by his prematurity and/or his multiple dysmorphologic features.”
(Doc. No. 68 2, p. 8.)
2. Dr. Molofsky
In the Declaration of Walter Molofsky (the “Molofsky Declaration”) submitted in
opposition to Plaintiff’s motion for summary judgment, Dr. Molofsky opines that the degree
and extensiveness of Plaintiff’s injuries are inconsistent with injuries that may be caused by
maternal glucose levels. Dr. Molofsky concludes that “even if [Ms.] Rivera’s prenatal glucose
levels had been normal, [Plaintiff] would still have been as neurologically impaired as I found
him during my examination.”7 (Declaration of Walter J. Molofsky (“Molofsky Decl.”) (Doc. No.
69) ¶ 7.)
In his expert report dated March 18, 2016, Dr. Molofsky stated the following findings:
“while [Plaintiff’s] neurological status may have been influenced by his maternal
hyperglycemia[,]. . . given his overwhelming neurological impairments characterized by his
clinical and radiological findings, . . . [Plaintiff] would have been similarly impaired even if his
mother’s prenatal glucose levels had been lower at an earlier point in her prenatal course.”
(Doc. No. 69 2, p. 11.) At Dr. Molofsky’s deposition, Plaintiff’s counsel asked Dr. Molofsky to
explain this statement:
Q:

Didn’t you say in [your expert] report that the maternal
hyperglycemia may have influenced [Plaintiff’s] current
neurological status?

7

At his deposition, Dr. Molofsky similarly opined that Plaintiff’s “current neurological status is unrelated to [Ms.
Rivera’s] sugar levels.” (Deposition of Walter J. Molofsky, M.D. (“Molofsky Dep. Tr.”) 84:11 13; 86:12 25.)

7

A:

I don’t think it says that.

Q:

You say “It is further my opinion that while [Plaintiff’s] neurological
status may have been influenced by his maternal hyperglycemia,”
I’ll get to the rest of the sentence in a minute but when you say “his
neurological status may have been influenced by his maternal
hyperglycemia,” aren’t you saying that the maternal hyperglycemia
influenced his current neurological status?

MS. HU:

Objection.

A:

No.

Q:

No, you don’t mean that?

A:

What I mean is that when his mother’s glucose was high he seemed
to have an abnormal neurological status reflected in the
biophysical profile and as the records indicate when that improved,
he clinically improved and then he unfortunately had neurological
damage from other issues.

(Molofsky Dep. Tr. 84:15 85:11.)
III.

Proceedings Before This Court
On or about January 15, 2015, Plaintiff commenced this action by filing a Complaint

against Defendants United States of America and Urban Health Plans, Inc.8 On January 6, 2016,
Plaintiff filed an Amended Complaint asserting, inter alia, a medical malpractice claim on behalf
of the infant Plaintiff due to UHP’s negligence in failing to diagnose and treat Ms. Rivera’s
gestational diabetes.9 (Doc. No. 34.)

8

On April 23, 2015, the parties stipulated that Urban Health Plans, Inc. was an improper defendant in this action
and that the case caption should be amended to identify United States of America as the sole Defendant. (Doc.
No. 9.)
9

Plaintiff’s Complaint and Amended Complaint also asserted causes of action for lack of informed consent and for
Ms. Rivera’s derivative claims for the injuries sustained by Plaintiff. However, at the time the Complaint was filed,
Ms. Rivera had not yet exhausted her administrative remedies with respect to the claims she brought in her
individual capacity. Ms. Rivera subsequently commenced two additional actions in the U.S. District Court for the
Southern District of New York, Docket Nos. 16 cv 7521 and 16 cv 7523, asserting her individual medical
malpractice claims that allegedly arose out of the same locus of operative facts as alleged in this case. On

8

On or about October 28, 2016, Plaintiff moved for partial summary judgment. In
support of his motion, Plaintiff submitted a Notice of Motion, a supporting Memorandum of
Law (which included a list of 11 supporting exhibits10), and a Statement of Uncontested
Material Facts pursuant to Rule 56 and Southern District of New York Local Rule 56.1. (Doc.
Nos. 54 55, 59.) Plaintiff argues that UHP was negligent in failing to diagnose and treat Ms.
Rivera’s gestational diabetes, and UHP’s departure from the reasonable standard of care was
the proximate cause of his injuries.
On December 16, 2016, the parties filed a Stipulation of Undisputed Fact, agreeing that:
“Defendant departed from accepted standards of medical practice during the course of its
provision of prenatal care to Michelle Rivera.” (Doc. No. 70.)
On December 16, 2016, Defendant opposed Plaintiff’s motion, filing the following
documents: Defendant’s Response to Plaintiff’s Local 56.1 Statement of Facts; Memorandum
of Law; the Declaration of Jessica Hu, Esq. and supporting exhibits; the Phelan Declaration and
supporting exhibits; and the Molofsky Declaration and supporting exhibits. Defendant argues

December 16, 2016, the parties stipulated to consolidate the three related actions and to dismiss the individual
claims of Ms. Rivera from the caption of this case. (Doc. No. 71.) The Court so ordered this stipulation. (Id.)
10

Plaintiff’s counsel indicated in a letter that he mailed hard copies of the exhibits listed in his memorandum of
law to the Court, but that he did not electronically file the exhibits due to their voluminous nature. (Doc. No. 53.)
In addition to the 11 exhibits purportedly annexed to Plaintiff’s moving brief, Plaintiff’s counsel subsequently filed
14 additional exhibits at the Court’s request. (Doc. No. 78.) However, neither set of exhibits were submitted via
an attorney affidavit or declaration, as is required under this Court’s Rules. See S.D.N.Y. Local Rule 7.1(a)(3) (all
motions shall include “[s]upporting affidavits and exhibits thereto containing any factual information and portions
of the necessary for the decision of the motion”). “There is no provision for filing freestanding exhibits unmoored
to an affidavit or declaration made on personal knowledge.” Spears v. City of N.Y., No. 10 cv 3461, 2012 WL
4793541, at *1, n.2 (E.D.N.Y. Oct. 9, 2012) (citing Fed. R. Civ. P. 56(c)(4)). However, since Defendant did not object
to Plaintiff’s exhibits and did not challenge the authenticity of the exhibits, this Court will consider Plaintiff’s
exhibits to the extent relevant. See id.

9

that Plaintiff’s motion should be denied because there is a dispute of material fact as to
causation, as evidenced by the competing expert opinions.
Plaintiff subsequently filed a reply memorandum of law in further support of his motion
for partial summary judgment, as well as a Response to Defendant’s Statement of Additional
Material Facts. (Doc. Nos. 72 73.) In his reply brief, Plaintiff contends that the Phelan
Declaration and Molofsky Declaration should be disregarded on the grounds that they
contradict prior sworn testimony of Dr. Phelan and Dr. Molofsky, respectively. Plaintiff further
argues that even if all facts are construed in Defendant’s favor, he is still entitled to summary
judgment because UHP’s negligence triggered the stream of events that ultimately produced
Plaintiff’s injuries.
Plaintiff’s counsel also filed a request for oral argument on the motion, which the Court
granted. The Court heard oral arguments on January 12, 2017. (Doc. No. 76.)
DISCUSSION
I.

Legal Standard Governing Motions For Summary Judgment Under Rule 56
Summary judgment is appropriate when “the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to a judgment as a
matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (quoting Fed. R. Civ. P. 56(c)).
A genuine issue of material fact exists “if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986).

10

In determining whether a genuine issue of material fact exists, the court is required to
resolve all ambiguities and draw all factual inferences in favor of the non moving party. Id. at
255. However, the opposing party “may not rest upon mere conclusory allegations or denials,
but must bring forward some affirmative indication that his version of relevant events is not
fanciful.” Podell v. Citicorp Diners Club, Inc., 112 F.3d 98, 101 (2d Cir. 1997) (internal quotations
and citations omitted); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
586 (1986) (a nonmoving party “must do more than simply show that there is some
metaphysical doubt as to the material facts”). In sum, if the court concludes that “the record
taken as a whole could not lead a rational trier of fact to find for the non moving party, there is
no ‘genuine issue for trial’” and summary judgment is warranted. Matsushita, 475 U.S. at 587
(citation omitted).
II.

Defendant’s Expert Declarations
Plaintiff argues in his reply brief that the Court should disregard the Phelan and

Molofsky Declarations on that the grounds that they contradict each expert’s prior sworn
testimony. Plaintiff is correct that that a non movant cannot create a genuine issue of fact to
defeat summary judgment simply by contradicting his own prior sworn statements. Cleveland
v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 806 07 (1999). However, “a material issue of fact may
be revealed by his subsequent sworn testimony that amplifies or explains, but does not merely
contradict, his prior testimony . . . especially where the party was not previously asked
sufficiently precise questions to elicit the amplification or explanation.” Rule v. Brine, Inc., 85
F.3d 1002, 1011 (2d Cir. 1996). The Court addresses Plaintiff’s challenges to each expert in
turn.

11

A.

Dr. Phelan

Plaintiff argues that Paragraph 17 of the Phelan Declaration—which asserts that
Plaintiff’s condition “most likely resulted from a hypoxic event that commenced no earlier than
3:32 a.m. on February 14, 2014, and . . . not the earlier maternal hyperglycemia that Ms. Rivera
experienced” (Phelan Decl. ¶ 17)—conflicts with Dr. Phelan’s prior deposition testimony.
According to Plaintiff, the “implication” of Paragraph 17 of the Phelan Declaration is that “‘only’
a hypoxic event most likely caused [Plaintiff’s] condition” (Doc. No. 72, ¶ 7), whereas Dr. Phelan
testified at his deposition that multiple factors contributed to Plaintiff’s injury. Specifically, Dr.
Phelan testified:
Q:

Dr. Phelan, did we agree that there can be several different causes of
injury to a person or to a fetus during pregnancy?

MS. HU:

Note my objection.

A:

Well, I’m not sure I fully understand. If you go back and look at my
report, I’ve enumerated multiple factors that were could be
responsible for this child’s neurological impairment, and I say that it . . .
occurred at or around the time of his birth or contributed to his
premature and/or dystrophic features. So, we have multiple factors
coming in: intrapartum, pre existing by virtue of having multiple
dysmorphic features, as well as by being born too soon.

(Deposition of Jeffrey P. Phelan (“Phelan Dep. Tr.”) 143:21 144:17.)
This Court disagrees with Plaintiff that Paragraph 17 of the Phelan Declaration is
inconsistent with his prior sworn testimony. Plaintiff’s argument rests on an “implication” that
is simply not supported by the plain language of the Phelan Declaration. Specifically, the Phelan
Declaration does not state that the intrapartum hypoxic event was the sole cause of Plaintiff’s
impairments; rather, it says that the hypoxic event “most likely” caused his injuries. In arguing
that a contradiction exists, Plaintiff is conflating two different questions—what factors could
12

have caused Plaintiff’s injuries, and which of the factors identified by Dr. Phelan most likely
caused the injuries. Plaintiff’s counsel does not identify any prior sworn statement where Dr.
Phelan opined as to which potential contributing factor was most likely to have brought about
Plaintiff’s impairments. Therefore, Paragraph 17 of the Phelan Declaration does not contradict
his prior testimony and should be considered in connection with this motion.
B.

Dr. Molofsky

Plaintiff also argues that Paragraph 6 of the Molofsky Declaration, which opines that
Plaintiff’s “current neurological status is unrelated to his mother’s sugar levels” (Molofsky Decl.
¶ 6), contradicts Dr. Molofsky’s expert report and deposition testimony. According to Plaintiff,
Dr. Molofsky testified and stated in his expert report that Plaintiff’s neurological status “may
have been influenced by his maternal hyperglycemia.” (Doc. 72, ¶ 9.) Turning first to the
alleged contradiction between the Molofsky Declaration and the deposition testimony, Plaintiff
does not cite to any portion of Dr. Molofsky’s deposition transcript where the allegedly
contradictory testimony is proffered.11 This Court also did not find any such conflicting
testimony in its thorough review of the transcript from Dr. Molofsky’s deposition that was
provided to the Court. On the contrary, the transcript reveals that Dr. Molofsky repeatedly
testified that Plaintiff’s “current neurological status is unrelated to [Ms. Rivera’s] sugar levels.”
(Molofsky Dep. Tr. 84:11 13; 86:12 25.) This testimony is entirely consist with the opinion set
forth in Paragraph 6 of the Molofsky Declaration.

11

During oral argument, Plaintiff indicated that he would identify citations to the allegedly contradictory portions
of Dr. Molofsky’s deposition testimony, but this information was never provided to the Court.

13

With respect to the purported contradictions between the Molofsky Declaration and his
expert report, the Court first notes that Dr. Molofsky’s expert report is merely a signed letter,
not a prior sworn statement. Plaintiff did not dispute this fact at oral argument. In any event,
the Court disagrees that Dr. Molofsky’s expert report directly contradicts the statements in his
Declaration. In Dr. Molofsky’s expert report, he vaguely asserts that Plaintiff’s “neurological
status may have been influenced by his maternal hyperglycemia.” (Doc. No. 69 2, p. 11.)
However, when questioned about this statement at his deposition, Dr. Molofsky clarified that
the statement referred to Plaintiff’s prenatal neurological status, not his current neurological
status. Specifically, Dr. Molofsky testified that he intended for his report to explain that
Plaintiff had an abnormal neurological profile at the time when Ms. Rivera’s glucose levels were
abnormally high (as evidenced by his low BPP scores), but that Plaintiff’s neurological profile
clinically improved prior to his birth (as evidenced by his rising BPP scores) until Plaintiff
suffered injuries for reasons unrelated to Ms. Rivera’s glucose levels. (See Molofsky Dep. Tr.
84:15 85:11.) When Dr. Molofsky’s vague statement in his expert report is considered in light
of his explanatory testimony, the Court does not find that the report contradicts the Molofsky
Declaration. Accordingly, there is no basis to strike or otherwise disregard the Molofsky
Declaration.

14

III.

G.C.W.’s Negligence Claim
Plaintiff alleges a medical malpractice claim against Defendant under the FTCA.12

“Under the FTCA, the liability of the United States for the negligent acts of its agents is
governed by the law of the state in which the alleged negligence occurred.” Ford v. United
States of Am., No. 98 cv 6702 (THK), 2000 WL 1745044, at *4 (S.D.N.Y. Nov. 27, 2000) (citing 28
U.S.C. § 1346(b)(1)). In this case, the alleged negligence occurred at UHP, which is located in
the Bronx. Thus, New York law applies to Plaintiff’s claim. See id.
To prevail on a medical malpractice claim under New York law, a plaintiff must prove:
“(1) that the defendant breached the standard of care in the locality where the treatment
occurred, and (2) that the breach was a proximate cause of the plaintiff’s injuries.” Id. at *4.
Although Plaintiff addressed both of these elements in his moving brief, the parties
subsequently stipulated that “Defendant departed from accepted standards of medical practice
during the course of its provision of prenatal care to Michelle Rivera.” (Doc. No. 70.) Thus, the
only remaining issue is whether there is any dispute of material fact that Defendant’s
negligence was the proximate, or legal, cause of Plaintiff’s injuries.
In assessing whether Plaintiff has established causation as a matter of law, the Court
must determine whether any trier of fact could conclude that Defendant’s negligence was not

12
The FTCA confers exclusive jurisdiction on the district court for actions for money damages against the United
States for:

money damages, accruing on and after January 1, 1945, for injury or loss of property, or personal
injury or death caused by the negligent or wrongful act or omission of any employee of the
Government while acting within the scope of his office or employment, under circumstances
where the United States, if a private person, would be liable to the claimant in accordance with
the law of the place where the act or omission occurred.
28 U.S.C. § 1346(b)(1).

15

“a substantial cause of the events which produced the injury.” Mazella v. Beals, 27 N.Y.3d 694,
706 (2016) (quoting Derdiarian v. Felix Constr. Corp., 51 N.Y.2d 308, 315 (1980)); see also
Bonsignore v. City of N.Y., 683 F.2d 635, 637 (2d Cir. 1982) (proximate causation limits a
defendant’s liability to “those foreseeable consequences that the defendant’s negligence was a
substantial factor in producing”).
“When a question of proximate cause involves an intervening act, ‘liability turns on
whether the intervening act is a normal or foreseeable consequence of the situation created by
the defendant’s negligence.’” Hain v. Jamison, 28 N.Y.3d 524, 529 (2016) (quoting Mazella, 27
N.Y.3d at 706) (emphasis in original). Thus, where “the acts of a third person intervene
between the defendant’s conduct and the plaintiff’s injury, the causal connection is not
automatically severed.” Derdiarian, 51 N.Y.2d at 315. The causal nexus may terminate,
however, if the intervening act was “extraordinary under the circumstances, not foreseeable in
the normal course of events, or independent of or far removed from the defendant's conduct.”
Id. For example, courts have recognized that “where an [injury] is one which might naturally
occur from causes other than a defendant’s negligence, the inference of his negligence is not
fair and reasonable.” Mortensen v. Mem’l Hosp., 105 A.D.2d 151, 158 (1st Dep’t 1984)
(citations omitted). Stated in other words, “proximate cause will be found lacking where the
original negligent act merely furnished the occasion for—but did not cause—an unrelated act
to cause injuries not ordinarily anticipated.”13 Hain, 28 N.Y.3d at 530 (internal quotations
omitted).

13

But, “[t]he mere fact that other persons share some responsibility for plaintiff’s harm does not absolve
defendant from liability because there may be more than one proximate cause of an injury.” Mazella, 27 N.Y.3d at
706 (internal quotations and citation omitted).

16

Although there are instances where proximate cause can be established as a matter of
law, it is generally viewed as an issue of fact because questions of foreseeability and what
constitutes extraordinary circumstances may give rise to varying inferences.14 Derdiarian, 51
N.Y.2d at 315; see also, e.g., Bacon v. United States, 104 F. App’x 208, 209 (2d Cir. 2004)
(“[t]ypically, a jury decides . . . issues of causation”). If the proof is ambivalent as to the issue of
whether the plaintiff would have suffered the same outcome regardless of the malpractice,
then a “pure factual issue is raised” that can “only be resolved by a jury determination of
whether the malpractice proximately deprived the [injured party] of [a] substantial possibility”
of a better outcome. Mortensen, 105 A.D.2d at 157.
Plaintiff argues that this case is one of the rare instances where causation can be
established as a matter of law. Plaintiff asserts that summary judgment is warranted because:
(1) Ms. Rivera’s hyperglycemia directly caused cell death in Plaintiff’s brain, as evidenced by the
lack of fetal movement that prompted Ms. Rivera to go to Montefiore; (2) the injury Plaintiff
sustained from Ms. Rivera’s hyperglycemia exacerbated the effects of any subsequent acute
injury; or, at the very least, (3) UHP’s negligence triggered the stream of events that ultimately
caused Plaintiff’s injuries and it was reasonably foreseeable that such injuries would occur.
Plaintiff relies on the testimony of its expert, Dr. Yohay, in support of these arguments.

14

A variety of factors can influence the fact sensitive proximate cause determination, including “the foreseeability
of the event resulting in injury; the passage of time between the originally negligent act and the intervening act;
the spatial gap, if any, between the original act and the intervening act; whether the original act of negligence was
a completed occurrence or was ongoing at the time of the intervening act; whether and, if so, what other forces
combined to bring about the harm; as well as public policy considerations regarding the scope of liability.” Hain,
28 N.Y.3d at 530 (citations omitted).

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In contrast, Defendant’s experts, Dr. Phelan and Dr. Molofsky, contend that Plaintiff’s
injuries were most likely caused by an independent, intervening event unrelated to Ms. Rivera’s
earlier hyperglycemia. In Defendant’s view, Plaintiff had fully recovered from the effects of Ms.
Rivera’s earlier hyperglycemia while at Montefiore because he recorded a BPP score of 8/8 and,
thus, was a neurologically normal and healthy fetus as of early morning on February 13, 2014.
Under New York law, summary judgment is inappropriate in circumstances where, like
here, there are conflicting expert opinions. See e.g., Harris v. Provident Life & Accident Ins. Co.,
310 F.3d 73, 79 (2d Cir. 2002) (collecting cases); Richardson v. City of N.Y., 15 cv 543 (LAK) (AJP),
2015 WL 7752143, at *14, n.19 (S.D.N.Y. Nov. 18, 2015). In particular, Plaintiff’s first two
theories of causation require a finding that Plaintiff’s brain was already injured at the time he
recorded the 8/8 BPP score, a fact that Defendant’s experts vehemently contest. There also is a
factual dispute over whether the effects of Ms. Rivera’s hyperglycemia had ended at the time
Plaintiff’s BPP score was 8/8—as Defendant says it had—or whether the effects were still
ongoing—as Plaintiff contends. See Hain, 28 N.Y.3d at 530 (one of the “fact specific
determination[s]” relevant to the proximate cause determination is “whether the original act of
negligence was a completed occurrence or was ongoing at the time of the intervening act”). It
is not the function of the court to resolve these competing positions at the summary judgment
stage. Id. (question of fact on the issue of proximate cause is presented where defendant’s
negligence left plaintiff in a position susceptible to further harm).
Plaintiff also contends that he is entitled to summary judgment because it is undisputed
that Ms. Rivera’s hyperglycemia caused her to go into premature labor, and that Plaintiff’s
prematurity was a substantial factor in his injuries. Although Defendant’s expert, Dr. Phelan,
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agrees that Plaintiff’s prematurity was a contributing factor to his injuries, Dr. Phelan disputes
that Ms. Rivera’s hyperglycemia caused Plaintiff’s premature birth. When asked if Plaintiff
would have been born prematurely if Ms. Rivera had not been admitted to the hospital for
hyperglycemia, Dr. Phelan testified that “[Ms. Rivera] was treated, the child went back to
normal and became normal. So, what happened subsequently is independent of any events
that preceded it, because the child went back to normal.” (Phelan Dep. Tr. 144:18 145:8.) In
other words, Defendant denies that Ms. Rivera’s hyperglycemia contributed to, or led to,
Plaintiff’s premature birth because, in Defendant’s view, Plaintiff was a neurologically normal
fetus on February 13, 2014 and then an independent hypoxic event occurred between 3:32
a.m. and 4:12 a.m. on February 14, 2014. (Phelan Decl. ¶ 12.) Defendant’s assertion that an
independent intervening event, and not Ms. Rivera’s earlier hyperglycemia, caused Plaintiff’s
prematurity is a dispute of fact that precludes summary judgment.
Plaintiff contends that even if an independent intervening hypoxic event was the actual
cause of his injuries, the case law still supports a finding of proximate cause under the
circumstances of this case because it was foreseeable that UHP’s negligence could lead to
injury. The Court disagrees with Plaintiff’s interpretation of the applicable case law as imposing
liability when there is an independent intervening event that causes the ultimate injury. The
New York Court of Appeals has repeatedly articulated that an independent intervening act can
be sufficient to sever the causal connection. See, e.g., Derdiarian, 51 N.Y.2d at 315 (causal
nexus may be severed where the intervening act is “independent of . . . the defendant’s
conduct”). For example, in Hain, a case that Plaintiff repeatedly referenced during oral
argument, the New York Court of Appeals surveyed the limitations of the proximate cause
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doctrine and explained that the chain of causation may be severed in situations where the
plaintiff has recovered from the defendant’s negligence and then a second harmful incident
independently occurs. 28 N.Y.3d at 529 32, 534 (holding that a factual dispute over proximate
cause precluded summary judgment). This scenario is precisely what Defendant argues
occurred in this case. Thus, under the standard articulated in Hain, the question of whether
“due to [] defendant’s negligence, the plaintiff is left in a position susceptible to further harm”
must be left for the fact finder and cannot be resolved by the Court at the summary judgment
stage. Id. at 532.
Similarly, Plaintiff’s reliance upon Grant v. Westinghouse Electric Corp., 877 F. Supp. 806
(E.D.N.Y. 1995) for the proposition that proximate cause is established as a matter of law any
time the injury “naturally flows” from the original negligent act is misplaced. In Grant, the
plaintiff was injured when he sought to repair a malfunctioning electrical switchboard
manufactured by defendant. Id. at 808. Following a jury verdict that, inter alia, defendant was
negligent for failing to provide warnings about defects in its product but that plaintiff had
negligently carried out his repairs, the defendant moved for judgment as a matter of law on the
grounds that the plaintiff’s own negligence was an intervening act that severed the causal
connection between defendant’s negligence and plaintiff’s injuries. Id. at 808, 815 16. The
court denied defendant’s motion and held that the jury could legitimately conclude that
plaintiff’s negligent repair efforts were “triggered by and flowed from” defendant’s negligence
given the evidence in the case. Id. at 819 20. The court’s rejection of the defendant’s
argument that proximate cause was lacking under the facts of Grant does not mean, however,
that proximate cause is per se established every time the plaintiff’s injury “flows” in some
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manner from the original negligent act, as Plaintiff suggests. Indeed, Grant recognizes that
causation is a fact issue for the jury or factfinder to resolve. Id. at 820 (“[s]uch causal issues
typically present questions of fact, as is the case here”). Furthermore, the Hain case—decided
after Grant—makes it clear that the doctrine of proximate cause is subject to limitations,
including where the original act of negligence is completed, as Defendant argues occurred here.
Hain, 28 N.Y.3d at 530 32 (an intervening act may break the causal nexus, even if the risk
created and the actual harm are similar, where “defendant’s acts of negligence had ceased, and
merely fortuitously placed the plaintiff in a location or position in which a secondary and
separate instance of negligence acted independently upon the plaintiff to produce harm”).15
For all of the reasons set forth above, there is a genuine dispute of material fact
regarding whether UHP’s negligence was the proximate cause of Plaintiff’s injuries.
CONCLUSION
For the foregoing reasons, this Court DENIES Plaintiffs’ Motion for Partial Summary
Judgment.
SO ORDERED.
Date: March 8, 2017
New York, New York

___________________________
KATHARINE H. PARKER
United States Magistrate Judge

15

The Court further notes that other cases cited in Plaintiff’s briefs are factually distinguishable because they do
not involve medical malpractice negligence claims and many are in different procedural postures than this case. It
also cannot be overlooked Plaintiff’s cited cases uniformly acknowledge that proximate cause is a fact sensitive
inquiry.

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