LEWIS v. PETERKIN, et al

Filing 46

MEMORANDUM OPINION AND ORDER signed by JUDGE WILLIAM L. OSTEEN, JR on 07/12/2021, that Plaintiff's Motion for Reconsideration, (Doc. 42 ), is DENIED.(Taylor, Abby)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

ROBERT LEWIS,
Plaintiff,
v.
HUBERT PETERKIN, et al.,
Defendants

)
)
)
)
)
)
)
)
)

1:19CV418

MEMORANDUM OPINION AND ORDER
OSTEEN, JR., District Judge
Presently before this court is a Motion for Reconsideration
filed by pro se Plaintiff Robert Lewis, (Doc. 42). Defendants
Sheriff Hubert Peterkin, Chief Jail Administrator Nachia Revels,
Hoke County, and Southern Health Partners have responded, (Docs.
43, 44); and Plaintiff Lewis has replied, (Doc. 45). Plaintiff’s
motion is ripe for resolution. For the reasons stated herein,
Plaintiff’s motion will be denied.
I.

BACKGROUND
Plaintiff alleged violation of his constitutional rights

and state law violations, (Doc. 1 at 36), following medical
treatment Plaintiff received on his eyes between July 8, 2015
and May of 2016, (id. at 19). The instant motion arises out of
this court’s order issued September 24, 2020. (Doc. 39.) That

order granted in part and denied in part Defendants’ Motion for
Judgement on the Pleadings, (Doc. 27), by dismissing Plaintiff’s
state law negligence claim against the Hoke County officials and
dismissing Plaintiff’s state medical malpractice claim, (Doc. 39
at 7).
II.

STANDARD OF REVIEW
Plaintiff styles his motion as arising under Rule 54(b) and

59(e) of the Federal Rules of Civil Procedure. (See Doc. 42.)
Although the Fourth Circuit has not specifically
articulated the standard for evaluating a motion for
reconsideration under Rule 54(b), see Am. Canoe Ass’n v. Murphy
Farms, Inc., 326 F.3d 505, 514-15 (4th Cir. 2003), district
courts in the Fourth Circuit routinely look to the standards
governing the reconsideration of final judgments under Rule
59(e) for guidance in considering a motion for reconsideration
of an interlocutory order under Rule 54(b). See Volumetrics Med.
Imaging, LLC v. Toshiba Am. Med. Sys. Inc., No. 1:05CV955, 2011
WL 6934696, at *2 (M.D.N.C. Dec. 30, 2011); Hinton v. Henderson,
No. 3:10cv505, 2011 WL 2142799, at *1 (W.D.N.C. May 31, 2011);
Pender v. Bank of Am. Corp., No. 3:05-CV-238-MU, 2011 WL 62115,
at *1 (W.D.N.C. Jan. 7, 2011); Directv, Inc. v. Hart, 366 F.
Supp. 2d 315, 317 (E.D.N.C. 2004).

- 2 -

A motion for reconsideration under Rule 59(e) is granted
only in three circumstances: “(1) to accommodate an intervening
change in controlling law; (2) to account for new evidence not
available at trial; or (3) to correct a clear error of law or
prevent manifest injustice.” Pac. Ins. Co. v. Am. Nat’l Fire
Ins. Co., 148 F.3d 396, 403 (4th Cir. 1993); see also Zinkand v.
Brown, 478 F.3d 634, 637 (4th Cir. 2007). Manifest injustice is
defined as “an error by the court that is direct, obvious, and
observable.” Register v. Cameron & Barkley Co., 481 F. Supp. 2d
479, 480 n.1 (D.S.C. 2007) (internal quotations omitted). “Clear
error occurs when [a court is] ‘left with the definite and firm
conviction that a mistake has been committed.’” United States v.
Woods, 477 F. App’x 28, 29 (4th Cir. 2012) (citing United States
v. Harvey, 532 F.3d 326, 336 (4th Cir. 2008)).
A motion for reconsideration under Rule 59(e) is improper
where “it only asks the Court to rethink its prior decision, or
presents a better or more compelling argument that the party
could have presented in the original briefs on the matter.”
Hinton, 2011 WL 2142799, at *1 (internal quotations and citation
omitted). See also Pac. Ins. Co., 148 F.3d at 403 (“Rule 59(e)
motions may not be used, however, to raise arguments which could
have been raised prior to the issuance of the judgment, nor may
they be used to argue a case under a novel legal theory that the
- 3 -

party had the ability to address in the first instance.”);
Directv, Inc., 366 F. Supp. 2d at 317 (holding that motion to
reconsider is not proper to “merely ask[ ] the court to rethink
what the Court had already thought through — rightly or
wrongly”) (internal citations and quotations omitted).
III. ANALYSIS
On September 24, 2020, this court granted Defendants’
Motion for Judgment on the Pleadings because “the facts alleged
in Plaintiff’s Complaint do not fall within the narrow common
knowledge exception” to the expert testimony requirement of a
medical malpractice claim, and do not “give rise to any
circumstances in which res ipsa loquitur has been applied.”
(Doc. 39 at 5-6.)
Plaintiff Lewis argues, in this instant motion, that this
court should reconsider granting Defendants’ Motion for Judgment
on the Pleadings, in order to “to correct a clear error of law
or prevent manifest injustice.” (Doc. 42 at 1.)

Specifically,

Plaintiff Lewis argues that the following errors led to the
dismissal of his state medical malpractice claim: (1) the wrong
standard of review was used to determine whether plaintiff ’s
medical malpractice claims fall within the guidelines of res
ipsa loquitur or the common knowledge exception to expert
testimony, (id. at 2); (2) the facts giving rise to Plaintiff’s
- 4 -

medical malpractice claims [were] unfairly misconstrued, (id. at
3); (3) he does not need expert medical testimony because there
exists a statute that clearly defines the standard of care for
Nurse McKenzie’s actions in this suit, (id. at 6); and finally
(4) his claim meets all the elements of res ipsa loquitur
because “there exists no direct proof of the cause of
Plaintiff’s injury, (id. at 7), “the instrumentality that was
used was under Nurse McKenzie’s control[,]” (id.), and “the
injuries that Plaintiff sustained would not occur in the absence
of some negligent act or omission,” (id. at 8). However, none of
these arguments present “an error by the court that is direct,
obvious, and observable[,]” Register, 481 F. Supp. 2d at 480 n.1
(internal quotations omitted), or an error that leaves this
court “with the definite and firm conviction that a mistake has
been committed[,]” Woods, 477 F. App’x at 29 (citing Harvey, 532
F.3d at 336). Consequently, these arguments do not provide
sufficient grounds for reconsideration.
Further, this court finds that Plaintiff Lewis had every
opportunity in both his Response to Defendants’ Motion for
Judgment on the Pleadings, (Doc. 30), and in his Objections to
the Magistrate Judge’s Memorandum Opinion and Recommendation,
(Doc. 34), to make these arguments. Plaintiff previously argued
in his objections to the Recommendation that “the common
- 5 -

knowledge exception to expert testimony applys [sic] to [his]
pendent medical malpractice claim.” (Id. at 4.) Arguing this
again in Plaintiff’s Motion for Reconsideration, (Doc. 42 at 2),
is duplicative and asks the court to rethink its prior decision
on the matter. See Hinton, 2011 WL 2142799, at *1; see also Pac.
Ins. Co., 148 F.3d at 403. Furthermore, Plaintiff’s second,
third, and fourth arguments regarding the interpretation of the
facts, the standard of care owed to Plaintiff, and the
applicability of res ipsa loquitur respectively, (Doc. 42 at 38), merely attempt to assert “a better or more compelling
argument that the party could have presented in the original
briefs on the matter.” Hinton, 2011 WL 2142799, at *1 (internal
quotations and citation omitted). For these reasons as well,
Plaintiff’s motion does not provide sufficient grounds for
reconsideration.
Assuming, arguendo, that Plaintiff had made his novel legal
arguments prior to this court’s order, (Doc. 39), and not in his
Motion for Reconsideration, (Doc. 42), Plaintiff would still
fail to overcome Defendants’ motion.
First, Plaintiff argues erroneously that North Carolina
state law supports the exclusion of expert testimony in his
state law medical malpractice claim. (See id. at 2, 6.) It is
true that “[u]nder the familiar Erie doctrine, [courts] apply
- 6 -

state substantive law and federal procedural law when reviewing
state-law claims.” Kerr v. Marshall Univ. Bd. of Governors, 824
F.3d 62, 74 (4th Cir. 2016). However, under North Carolina law,
the expert testimony requirement “is a substantive element of a
medical malpractice claim.” Lauer v. United States, Civil No.
1:12cv41, 2013 WL 566124, at *3 (W.D.N.C. Feb. 13, 2013) (citing
Camalier v. Jeffries, 340 N.C. 699, 460 S.E.2d 133 (1995)).
Therefore, because this court must apply state substantive law,
expert testimony is required in this case unless an exception
applies.
Second, Plaintiff’s res ipsa loquitur negligence claim is
inconsistent with the application of “res ipsa” in North
Carolina.1
While the North Carolina Supreme Court recognizes the
doctrine of res ipsa, Harris v. Mangum, 183 N.C. 235, 237,

1

Ultimately, this res ipsa loquitur claim is a variation of
Plaintiff’s previous arguments in his objections to the
Recommendation, (Doc. 34 at 4-8), and in section I of his Motion
for Reconsideration, (Doc. 42 at 2-3), that the common knowledge
exception to North Carolina’s expert testimony requirement for
medical malpractice cases applies in Plaintiff’s case. This is
because “[t]he limited number of North Carolina courts to apply
this exception have discussed it as applying the doctrine of res
ipsa loquitur.” Warden v. United States, 861 F. Supp. 400, 403
(E.D.N.C. 1993) (collecting cases), aff’d, 25 F.3d 1042 (4th
Cir. 1994). However, the court will address this argument as if
it were a novel legal argument in acknowledgement of the
Plaintiff’s pro se representation.
- 7 -

111 S.E. 177 1922), as a way to allow “the facts of [an]
occurrence [to] warrant an inference of defendant’s negligence,”
Diehl v. Koffer, 140 N.C. App. 375, 378, 536 S.E.2d 359, 362
(2000) (quoting Kekelis v. Machine Works, 273 N.C. 439, 443, 160
S.E.2d 320, 323 (1968)), its application in the medical
malpractice context is rare and only in a narrow capacity. North
Carolina courts have “consistently reaffirmed that res ipsa
loquitur is inappropriate in the usual medical malpractice case,
where the question of injury and the facts in evidence are
peculiarly in the province of expert opinion.” Bowlin v. Duke
Univ., 108 N.C. App. 145, 149-50, 423 S.E.2d 320, 323 (1992);
see also Elliott v. Owen, 99 N.C. App. 465, 393 S.E.2d 347
(1990). However, in a handful of extreme cases when common
knowledge was sufficient to observe negligent medical care,
North Carolina courts have made an exception and applied res
ipsa to the medical malpractice context. See Tice v. Hall, 310
N.C. 589, 594–95, 313 S.E.2d 565, 567–68 (1984) (applying res
ipsa to case in which doctor allegedly left sponge in the
plaintiff during operation); Schaffner v. Cumberland Cnty. Hosp.
Sys., Inc., 77 N.C. App. 689, 691–92, 336 S.E.2d 116, 118 (1985)
(applying doctrine of res ipsa to case in which the plaintiff’s
hand was burned during unrelated surgery); Parks v. Perry, 68
N.C. App. 202, 207, 314 S.E.2d 287, 290 (applying res ipsa to
- 8 -

case in which the plaintiff allegedly suffered nerve damage in
her right arm during a vaginal hysterectomy operation).
These applications, in which a lay person could infer
negligence from the nature of the harm, are distinguishable from
the case at hand which is more akin to the usual medical
malpractice case. Plaintiff alleges that he went to a nurse
complaining of extreme eye pain, (Doc. 42 at 3); the nurse
provided him with inadequate treatment consisting of an eye
examination and a delayed referral to a doctor, (id. at 3-6);
and Plaintiff subsequently experienced “blurry and weak” vision,
(id. at 7). Based on these facts, a lay person would be unable
to determine if the standard of care the nurse owed to Plaintiff
was breached, and thus, medical expert testimony is required, in
accordance with the ordinary rule for medical malpractice cases
under NC law. See e.g., Bowlin, 108 N.C. App. at 149-50.
Consequently, medical expert testimony is still required, and
its lack thereof remains fatal to Plaintiff’s medical
malpractice and negligence claims.
Accordingly, Plaintiff’s motion fails to provide a
sufficient basis for reconsideration and his novel legal
arguments, if made prior to this court’s order, (Doc. 39), would
not have prevented Plaintiff’s unfavorable Judgement on the
Pleadings.
- 9 -

IV. CONCLUSION
For the reasons stated herein,
IT IS THEREFORE ORDERED that Plaintiff’s Motion for
Reconsideration, (Doc. 42), is DENIED.
This the 12th day of July, 2021.

__________________________________
United States District Judge

- 10 -