Davis v. USA, et al.,
ORDER granting 21 Defendant's Motion for Partial Summary Judgment. Signed by Judge George C. Smith on 9/29/17. (sem)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
VIRGINIA B. DAVIS,
Case No.: 2:15-cv-2404
Magistrate Judge Vascura
UNITED STATES OF AMERICA,
OPINION AND ORDER
This matter is before the Court upon the Motion for Partial Summary Judgment of
Defendant United States of America (Doc. 21). Plaintiff opposed Defendant’s Motion (Doc. 22)
and Defendants replied in support (Doc. 23). This matter is now ripe for review. For the
following reasons, Defendant’s Motion for Partial Summary Judgment is GRANTED.
This case stems from alleged medical malpractice against the United States, filed under
the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2671–2680. Plaintiff claims that
Dr. Cynthia Gray performed an unnecessary exploratory procedure that directly caused the
miscarriage, or spontaneous abortion, of her pregnancy. Dr. Gray is employed by Change, Inc., a
federally funded community health center under the Federally Supported Health Centers
Assistance Act, 42 U.S.C. § 233(g)–(n).
On December 2, 2013, Davis visited Change, Inc.’s clinic in Wintersville, Ohio for an
ultrasound. (Doc. 21-1, Stefanski Dep. at 32–33; Doc. 21-2, Russell Decl. at ¶ 4). Davis was
approximately four weeks pregnant at this time, but Davis mistakenly believed she was
approximately eight weeks pregnant and relayed this information to the ultrasound technician.
(Doc. 21-1, Stefanski Dep. at 37, 39–40, 80–81). The ultrasound revealed no signs of an
intrauterine pregnancy, which was alarming to the technician administering the ultrasound. (Id.
at 37–38). Davis further reported either having pain in her left side or cramping similar to
menstrual cramping. (Id. at 33; Doc. 21-3, Davis Dep. at 47–48). The ultrasound findings were
reported to Dr. Kara O’Karma, who was the attending doctor in the clinic. (Doc. 21-1, Stefanski
Dep. at 87–88). Dr. O’Karma reviewed the ultrasounds and sent Davis to Trinity Hospital in
Steubenville, Ohio, for a possible ectopic pregnancy on the left side. (Doc. 21-4, Snodgrass Dep.
Dr. Gray performed a mini-laparotomy on Davis but found no evidence of an ectopic
pregnancy. (Doc. 21-7, Gray Decl. at ¶ 2). This procedure requires a three to four centimeter
incision through the abdominal wall and peritoneum to gain access to the pelvic cavity. (Id.).
After the 20-minute procedure, Davis was doing well and was released to go home. (Id. at ¶ 4).
Davis had to make a return trip to the hospital to address some urinary retention issues, which
were resolved without any complications. (Id.). After experiencing some mild persisting pain,
Davis returned to work approximately a week and a half after the procedure. (Doc. 21-3, Davis
Dep. at 64).
In the weeks following Davis’ procedure, embryonic development was monitored and
found to be appropriate. Davis’ hCG levels rose appropriately and a December 5 ultrasound
(three days after the procedure) revealed that a gestational sac had developed in the uterus. (Doc.
21-6, Gray Dep. at 77, 90, 97). Another ultrasound was conducted on December 20 and, again,
normal embryonic development was observed. (Id. at 99). The embryo had a normal heartbeat
and measured at a gestational age of seven weeks and one day. (Doc. 21-2, Russell Decl. at ¶¶ 3,
6, 7). Another ultrasound was conducted approximately five weeks after the procedure, on
January 6. Unfortunately, no heartbeat was detected and measurements reflected that the fetus
stopped growing during the eighth week of Davis’ pregnancy. (Id. at ¶ 10). A follow-up
ultrasound on January 8 confirmed these findings. (Id. at ¶ 11). This was Davis’ third and final
pregnancy. She had a child in 2004 and had a miscarriage a few years before the miscarriage at
issue here. (Doc. 21-9, Pl.’s Resp. to Def’s. First Interrogs. at Resp. No. 1). Davis experienced a
history of infertility problems and underwent unsuccessful fertility treatment after her first
miscarriage. (Doc. 21-3, Davis Dep. at 73). Davis’ final potentially relevant health factor is that
she had a thyroid abnormality during the pregnancy at issue. (Doc. 21-9, Pl.’s Resp. to Def’s.
First Interrogs. at Resp. No. 4).
Plaintiff brought suit in this case under the FTCA, alleging that Dr. Gray’s December 2,
2013 procedure constituted negligent medical malpractice that resulted in a miscarriage and
injuries to Plaintiff. Defendant now seeks summary judgment as to whether Dr. Gray’s actions
were the proximate cause of Plaintiff’s miscarriage.
STANDARD OF REVIEW
Defendant moved for summary judgment pursuant to Rule 56 of the Federal Rules of
Civil Procedure. Summary judgment is appropriate “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.” Fed. R. Civ. P. 56(a). The Court’s purpose in considering a summary judgment motion is
not “to weigh the evidence and determine the truth of the matter” but to “determine whether
there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). A
genuine issue for trial exists if the Court finds a jury could return a verdict, based on “sufficient
evidence,” in favor of the nonmoving party; evidence that is “merely colorable” or “not
significantly probative,” however, is not enough to defeat summary judgment. Id. at 249-50.
The party seeking summary judgment shoulders the initial burden of presenting the court
with law and argument in support of its motion as well as identifying the relevant portions of
“‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any,’ which it believes demonstrate the absence of a genuine issue of material fact.”
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ. P. 56). If this initial
burden is satisfied, the burden then shifts to the nonmoving party to set forth specific facts
showing that there is a genuine issue for trial. See Fed. R. Civ. P. 56(e); see also Cox v.
Kentucky Dep’t of Transp., 53 F.3d 146, 150 (6th Cir. 1995) (after burden shifts, nonmovant
must “produce evidence that results in a conflict of material fact to be resolved by a jury”). In
considering the factual allegations and evidence presented in a motion for summary judgment,
the Court must “afford all reasonable inferences, and construe the evidence in the light most
favorable to the nonmoving party.” Id.
Defendant moved for partial summary judgment on the issue of whether the December
2nd procedure was the direct and proximate cause of Davis’ miscarriage. Defendant’s primary
argument in support of granting partial summary judgment is that Plaintiff has not produced, nor
can she produce, evidence “showing that it is more likely than not that Davis’ spontaneous
abortion directly resulted from the [procedure].” (Doc. 23, Reply at 2).
Plaintiff’s claims are before this Court under the FTCA, which “does not create liability,
it merely waives sovereign immunity to the extent that state-law would impose liability on a
‘private individual in similar circumstances.’” Mason v. United States, No. 2:14-CV-853, 2016
WL 1594577, at *1 (S.D. Ohio Apr. 21, 2016) (Frost, J.) (citing Myers v. United States, 17 F.3d
890, 899 (6th Cir. 1994) (quoting 28 U.S.C. § 2674)) (emphasis in original). Further, “federal
procedural law governs the manner in which [FTCA claims] are resolved on a summary
judgment motion.” Vance By and Through Hammons v. United States, 90 F.3d 1145, 1148 (6th
Cir. 1996). Therefore, the Court will apply Ohio substantive law and federal procedural law “to
determine whether a private person would be liable to Plaintiff under these circumstances.”
Mason, 2016 WL 1594577, at *1.
Admissibility of Plaintiff’s Expert’s Opinion Letters and Certificate of Merit
At the outset, the Court will briefly address Defendant’s argument that the opinion letters
of Dr. David Burkons, Plaintiff’s medical expert, are inadmissible hearsay and cannot be
considered by the Court at the summary judgment stage. Plaintiff also posits that Dr. Burkons’
Certificate of Merit is inadmissible for the purposes of opposing summary judgment.
In support of its position with respect to the opinion letters, Defendant cites several Sixth
Circuit cases that applied Federal Rule of Civil Procedure 56 as it existed prior to the significant
2010 amendments of that rule. In Shaffer v. CSX Transp., Inc., 462 F. App’x 597, 602 fn. 2 (6th
Cir. 2012), the Sixth Circuit ruled that the district court did not commit error by refusing to
consider an unsworn expert report submitted by a nonmoving party opposing summary
judgment. In coming to this conclusion, the Sixth Circuit relied on its earlier holdings in Sigler
v. Am. Honda Motor Co., 532 F.3d 469 (6th Cir. 2008) and Pack v. Damon Corp., 434 F.3d 810
(6th Cir. 2006). In Sigler, the movant submitted three unsworn expert reports in support of its
motion for summary judgment. The court ruled that “the district court improperly considered
Honda’s unsworn, hearsay evidence in deciding to grant Honda’s motion for summary
judgment.” Sigler, 532 F.3d at 481. Similarly, in Pack, the court held that the district court erred
by relying on the summary judgment movant’s unsworn expert report. Pack, 434 F.3d at 815.
On the flip side of that argument, Defendant also noted a decision from the Eastern
District of Michigan which concluded that unsworn expert reports submitted by a nonmoving
party (as is the present case) may be considered at the summary judgment stage. That court
Plaintiff has objected to the R & R’s finding that Dr. Bacon’s expert report is
inadmissible. Generally, a court may not consider inadmissible evidence on a
motion for summary judgment. Alpert v. United States, 481 F.3d 404, 409 (6th
Cir. 2007). However, a non-moving party need not “produce evidence in a form
that would be admissible at trial in order to avoid summary judgment.” Celotex
Corp. v. Catrett, 477 U.S. 317, 324, 106 S. Ct. 2548, 91 L.Ed.2d 265
(1986); Alexander v. CareSource, 576 F.3d 551, 558 (6th Cir. 2009); cf. Fed. R.
Civ. P. 56(c)(2) (“A party may object that the material cited to support or dispute
a fact cannot be presented in a form that would be admissible in evidence.”
(emphasis added)). The relevant inquiry is whether the evidence submitted in
non-admissible form during the summary judgment stage “will be reduced to
admissible form at trial.” DeBiasi v. Charter Cty. of Wayne, 537 F. Supp. 2d 903,
911 (E.D. Mich. 2008) (quoting McMillian v. Johnson, 88 F.3d 1573, 1584 (11th
Cir. 1996)); see 11 James W. Moore et al., Moore’s Federal Practice § 56.91,
 (3d ed. 1999) (discussing inadmissible content versus inadmissible form).
[ . . .]
The R & R, as well as Defendants Hutchinson and Mamidipaka, cite to Sigler v.
American Honda Motor Co., 532 F.3d 469 (6th Cir.2008), for the proposition that
an unsworn expert report is hearsay and thus inadmissible. However, Sigler is
inapplicable because there, it was the moving party that offered the unsworn
expert reports in support of its motion for summary judgment. Here, Plaintiff, the
non-moving party, is offering an unsworn expert report in opposition to
Defendants’ motion for summary judgment. Thus, Celotex’s more lenient
standard for non-moving parties applies. See Celotex, 477 U.S. at 324. In
addition, since Sigler, Rule 56 has been substantially amended and revised, and
subdivision (e) of the former Rule 56, which governed the admissibility of
evidence for purposes of summary judgment, has been largely omitted. See,
e.g., Fed. R. Civ. P. 56 advisory committee notes, 2010 amendments, subdivision
(c) (“Subdivision (c) is new. . . . Subdivision (c)(4) carries forward some of the
provisions of former subdivision (e)(1). Other provisions are relocated or
Allen v. Shawney, No. 11-10942, 2014 WL 1089618, at *9–10 (E.D. Mich. Mar. 18, 2014),
aff’d (6th Cir. No. 14-1510 (June 3, 2015)).
The Court finds the Allen approach appropriate under the circumstances. While it is true
that Dr. Burkons’ opinion letters are unsworn and would be inadmissible at trial in their present
form, Defendant does not argue that the letters are incapable of being presented in admissible
form, as is currently required under Rule 56. (“A party may object that the material cited to
support or dispute a fact cannot be presented in a form that would be admissible in evidence.”
Fed. R. Civ. P. 56(c)(2)). Because the content of Dr. Burkons’ opinion letters is fully capable of
being reduced to admissible form, the Court finds them proper for consideration.
The Court now turns to the Dr. Burkons’ sworn Certificate of Merit as possible evidence
in opposition to summary judgment. An “affidavit of merit”—or “certificate of merit,” in this
case—is a short statement attached to a medical malpractice complaint required by Ohio Rule of
Civil Procedure 10(D)(2). “[T]he purpose of the affidavit of merit is to establish the adequacy of
the complaint and thus deter the filing of frivolous medical-malpractice claims.” Troyer v. Janis,
132 Ohio St. 3d 229, 2012-Ohio-2406, 971 N.E.2d 862, ¶ 7 (citing Fletcher v. Univ. Hosps. of
Cleveland, 120 Ohio St. 3d 167, 2008-Ohio-5379, 897 N.E.2d 147, ¶ 10). As a matter of law,
the affidavit of merit requirement is state substantive law. See Willis v. U.S., Dep’t of Veteran’s
Affairs, No. 2:12-CV-867, 2013 WL 3155785, at *3 (S.D. Ohio June 20, 2013) (Graham, J.) (“it
is well-established that the affidavit requirement is substantive in nature . . . .”) (citing cases).
Rule 10(D)(2) requires the affidavit of merit to state the following:
that the affiant has reviewed all medical records reasonably available to
the plaintiff concerning the allegations contained in the complaint;
(ii) that the affiant is familiar with the applicable standard of care; and
(iii) the opinion of the affiant that the standard of care was breached by
one or more of the defendants and that the breach caused injury to the
Ohio Civ. R. 10(D)(2)(a)(i)–(iii). Further, Rule 10(D)(2)(d) states that “[a]n affidavit of merit is
required to establish the adequacy of the complaint and shall not otherwise be admissible as
evidence or used for purposes of impeachment.” (emphasis added).
Even if Rule 10(D)(2)(d) is not to be construed as a blanket prohibition on using an
affidavit of merit as evidence to oppose summary judgment, there is considerable Ohio case law
that stands for the proposition that affidavits of merit containing “only the bare assertions
required by Civ. R. 10(D)(2)(a) can never constitute evidence of the type enunciated in Civ. R.
56(C) to support or oppose a motion for summary judgment.” White v. Summa Health Sys., 9th
Dist. Summit No. 24283, 2008-Ohio-6790, ¶ 22; see also Braden v. Sinar, 9th Dist. Summit No.
24056, 2008-Ohio-4330, ¶ 20; Schura v. Marymount Hosp., 8th Dist. No. 94359, 2010–Ohio–
5246, ¶ 28 (“The affidavits of merit in this case contain only the bare assertions required by
Civ.R. 10(D)(2). As such, they are insufficient to oppose summary judgment.”); Babcock v.
Albrecht, 11th Dist. Lake No. 2010–L–150, 2012-Ohio-1129, ¶ 44 (disregarding affidavit of
merit on summary judgment where no facts were set forth regarding the prevailing standard of
care, how that standard of care was not met, or how the alleged breach caused the injury at
Here, like the cases cited in the paragraph above, Dr. Burkons’ Certificate of Merit fails
to set forth any additional facts above and beyond the bare assertions required by Civ. R.
Accordingly, this Court will not consider these statements at this stage of the
“In order to establish medical malpractice, the plaintiff must prove by a preponderance of
the evidence that the injury complained of was proximately caused by medical care or treatment
that fell below the recognized standards of medical care in the community.” Kester v. Brakel,
10th Dist. Franklin No. 06AP-253, 2007-Ohio-495, ¶ 26 (citing Bruni v. Tatsumi, 46 Ohio St. 2d
127, 131–32 (1976)).
“Proximate cause is ‘a happening or event which as a natural and
continuous sequence produces an injury without which the result would not have occurred.’”
Hitch v. Ohio Dep’t of Mental Health, 114 Ohio App. 3d 229, 240, 683 N.E.2d 38 (10th Dist.
1996) (quoting Randall v. Mihm, 84 Ohio App. 3d 402, 406, 616 N.E.2d 1171 (2nd Dist. 1992)).
In general, the plaintiff in a medical malpractice case “must prove causation through medical
expert testimony in terms of probability to establish that the injury was, more likely than not,
caused by the defendant’s negligence.” Roberts v. Ohio Permanente Med. Grp., Inc., 76 Ohio
St. 3d 483, 485, 668 N.E.2d 480 (1996) (citing Shumaker v. Oliver B. Cannon & Sons, Inc., 28
Ohio St.3d 367, 369, 504 N.E.2d 44 (1986)).
Here, Plaintiff is faced with the difficult task of showing that it was more likely than not
that the procedure she underwent on December 2, 2013, was the proximate cause of the
miscarriage she suffered approximately four weeks later. The Court refers to this task as
“difficult” because, as Defendant points out, “[t]he law and the medical literature have long
confirmed the lay understanding that spontaneous abortion is common and has many different
causes such that cause in any particular case is usually unknown.” (Doc. 21, Mot. at 10 (citing
Lesley Regan et al., Influence of Past Reproductive Performance on Risk of Spontaneous
Abortion, 299 Brit. Med. J. 541, 541 (1989), attached to Doc. 21-8, Griffin Dep. at Ex. 3)).
Defendant’s medical expert, Dr. Larry Griffin, submitted an eight-page report, a full page
and a half of which was devoted to the issue of causation. (Doc. 21-8, Griffin Dep. at Ex. 2).
Dr. Griffin cited to several pieces of medical literature and discussed the expected harm that
would occur (fetal demise within a matter of days) if the procedure was a significant insult to the
Instead, Dr. Griffin noted that Plaintiff’s hCG levels rose appropriately, an
intrauterine gestational sac containing a fetal pole developed, and normal fetal cardiac activity
was observed. Dr. Griffin reasoned—and noted that other teratologists share the same opinion—
that an insult occurring so early in pregnancy will either cause cell death to a degree
incompatible with further fetal development or no harm at all because of the low number of
overall cells and the rapid rate of cell division during this early period of development. This
evidence sufficiently demonstrates the absence of a genuine issue of material fact.
As a result of Defendant’s showing, the burden of proof shifts to Plaintiff to prove that a
genuine issue of material fact exists. Consistent with the medical malpractice standards set forth
above, Plaintiff must make this showing through medical expert testimony that establishes that
the injury was, more likely than not, caused by the defendant’s negligence. In attempting to do
so, Plaintiff relies on three opinion letters from Dr. Burkons. The majority of the opinion letters’
content is related to the actual care Plaintiff received. These facts have been sufficiently set forth
above and do not bear repeating here. However, a brief summary of each letter, to the extent
each deals with the issue of causation, is warranted.
The first letter, dated May 31, 2016, generally states that Dr. Burkons has reviewed the
relevant materials and notes that he has practiced obstetrics and gynecology since 1973 and has
“evaluated literally hundreds of patients for the possibility of ectopic pregnancy and have treated
ectopics on many occasions,” (Doc. 22-3, Burkons 1st Op. Ltr. at 1). Dr. Burkons further opines
that “[d]uring the operation, it is clear that there must have been manipulation of the uterine
fundus . . . .” (Id. at 2). Without stating any further basis for his opinion, Dr. Burkons later
concludes, “[a]s a viable intrauterine pregnancy develops, and then became non-viable, it is my
opinion, to a high degree of medical probability, that the trauma of the surgery and the anesthesia
involved, was the proximate cause of this viable pregnancy not continuing to a normal delivery.”
(Id. at 3).
The second letter, dated June 15, 2016, is largely silent as to causation with the exception
that Dr. Burkons concludes, “[t]hus, after reviewing the above mentioned depositions, my
opinion regarding deviation from the standard of care and their impact on Mrs. Davis’
preganancy and subsequent psychological problems, are not only confirmed, but strengthened.”
(Doc. 22-4, Burkons 2d. Op. Ltr. at 2).
The third and final letter, dated August 17, 2016, was issued by Dr. Burkons as a rebuttal
to Defendant’s expert report and contains the most causation-related statements of any of the
three letters. Dr. Burkons opined that his opinion was indeed strengthened by one of the medical
articles relied upon by Dr. Griffin. Dr. Burkons cited the following sentence from that article’s
conclusion: “A false positive diagnosis of a non-viable pregnancy early in the first trimester—
incorrectly diagnosing pregnancy failure in a woman with intrauterine gestational sac or ruling
out viable intrauterine gestation in a woman with a pregnancy of unknown location—can prompt
interventions that damages a pregnancy that might have had a normal outcome.” (Doc. 22-5,
Burkons 3d Op. Ltr. at 1). Dr. Burkons concluded, “[t]his is exactly what happened in this case.”
Later in his third opinion letter, Dr. Burkons’ attempts to establish a nexus between his
substantial experience in performing similar procedures throughout his medical career and the
procedure presently at issue.
He states that in his experience, these procedures “involved
excessive manipulation of the uterus, tubes an ovaries” and the same “would have to have been
done in Mrs. Davis’ case.” Dr. Burkons continued, “In these cases, there is ample opportunity to
partially disrupt the corpus luteum on the ovary and the implementation of the fetus in the uterus
which can result in sub optimum development of the pregnancy and fetal demise.” (Id. at 2
“It is well settled that a Rule 26(a)(2)(B) expert report ‘must set forth facts and, in doing
outline a line of reasoning arising from a logical foundation.’”
Operating, L.P. v. Hall Drilling, LLC, No. 2:14-CV-204, 2015 WL 3743795, at *5 (S.D. Ohio
June 15, 2015) (Frost, J.) (quoting R.C. Olmstead, Inc. v. CU Interface, LLC, 606 F.3d 262, 271
(6th Cir. 2010)) (additional internal quotations omitted). Further, there is no requirement that a
district court “‘admit opinion evidence that is connected to existing data only by the ipse dixit of
the expert.’” Kumho Tire Co. v. Carmichael, 526 U.S. 137, 157 (1999) (quoting Gen. Elec. Co.
v. Joiner, 522 U.S. 136, 146 (1997)). The Sixth Circuit has stated on multiple occasions that
expert reports “must include ‘how’ and ‘why’ the expert reached a particular result, not merely
the expert’s conclusory opinions.” Automated Sols. Corp. v. Paragon Data Sys., Inc., 756 F.3d
504, 521 (6th Cir. 2014) (quoting R.C. Olmstead, 606 F.3d at 271).
Stated another way,
“[c]onclusory statements unadorned with supporting facts are insufficient to establish a factual
dispute that will defeat summary judgment.” Alexander, 576 F.3d at 560 (citing Lewis v. Philip
Morris Inc., 355 F.3d 515, 533 (6th Cir. 2004)).
“If a court concludes that the evidence
supporting the expert’s position is insufficient to allow a reasonable juror to conclude that the
position more likely than not is true, then the court remains free to prohibit the case from
proceeding to the jury.” Glaser v. Thompson Medical Co., 32 F.3d 969, 972 (6th Cir.
1994) (citing Daubert v. Merrell Dow Pharm., Inc., 113 S. Ct. 2786, 2798 (1993)). “Although
courts should be careful to respect scientific opinion, nevertheless courts apply a ‘hard look’ to
the reasoning of qualified scientific opinions to determine whether a triable issue has been
created.” Austin v. Children’s Hosp. Med. Ctr., 92 F.3d 1185, 1996 WL 422484, at *2 (6th Cir.
1996) (citing Turpin v. Merrell Dow Pharm., Inc., 959 F.2d 1349, 1252–53 (6th Cir. 1992)).
Defendant argues that Dr. Burkons failed to provide “how” and “why” he reached his
conclusion because he has not cited to any medical literature and that his statements are
speculative and conclusory. While the Court is aware of Dr. Burkons’ failure to cite to any
medical literature to support his position, this omission alone does not necessarily render his
opinion meritless. The Court’s greater concern lies with Plaintiff’s argument that Dr. Burkons’
provided “how” and “why” he reached his conclusions by virtue of the fact that he has extensive
personal experience on the subject. While the Court has no reason to question the competency of
Dr. Burkons as a surgeon, the Court does not agree with Plaintiff’s position. Dr. Burkons’
extensive experience certainly speaks to his exposure to ectopic pregnancy-related procedures,
but the Court cannot rely on that information alone. His letters do not provide any facts
explaining how or why his personal experiences led him to his conclusions under this particular
set of facts. All that remains are conclusory statements that leave the Court to wonder how Dr.
Burkons’ experience with ectopic pregnancies is applicable to the specific issue of causation.
Dr. Burkons stated that he performed procedures to rule out ectopic procedures “many, many
times” but his letters do not inform the Court of how these cases resulted (e.g., how many, if any,
of these procedures ultimately led to miscarriage and how long after the procedures the
miscarriages occurred). Dr. Burkons also failed to address “how” and “why” Dr. Griffin’s
opinions pertaining to Plaintiff’s normal rise in hCG levels, appropriate fetal development,
normal fetal heart rate, Plaintiff’s past infertility issues, Plaintiff’s past miscarriage, or Plaintiff’s
thyroid abnormality during the pregnancy ultimately did not affect his conclusion that the
December 2nd procedure was more likely than not the cause of Plaintiffs miscarriage. Cf. Austin,
1996 WL 422484 at *2 (finding insufficiency of expert testimony in part because the expert did
not “explain why he excluded the myriad of other potential sources of the [alleged harm]). If
Plaintiff is going to rely on the personal experience of its expert, these facts are critical to
establish a nexus between Dr. Burkons’ experience and the present case. Without these facts, the
Court would be relying solely on ipse dixit of Dr. Burkons.
Nor is the Court persuaded by Dr. Burkons’ multiple claims that the medical literature
relied upon by Dr. Griffin in fact bolsters his opinion that the procedure was the proximate cause
of Plaintiff’s miscarriage. Each of the articles contains variables or elements that render them
inapposite with the propositions that Dr. Burkons contends they stand for. Further, Plaintiff
points out that “neither [expert] could identify a controlled study, let alone one that was random
and double blinded, to determine the cause and effect, if any between surgery and miscarriage”
and “there are no controlled studies available to assist the parties’ medical experts or the fact
finder [sic] determine whether the subject surgery caused Plaintiff’s miscarriage.” (Doc. 22,
Resp. at 5, 6). These arguments are not availing to Plaintiff. If anything, they underscore the
difficulty of the evidentiary hurdle that Plaintiff is faced with in opposing summary judgment.
Finally, Plaintiff argues that Dr. Griffin “cannot rule out with 100% certainty that there is a link
between surgery and miscarriage.” Given the uncertain nature of miscarriages, this position
should come as no surprise to Plaintiff. Of course, it is not Defendant’s burden to rule out a
causal link with 100% certainty. Rather, Plaintiff bears the burden of proof to show that it is
more likely than not that the December 2nd procedure was the proximate cause of Plaintiff’s
In sum, the expert medical testimony relied upon by Plaintiff fails to raise a genuine issue
of material fact because Dr. Burkons’ opinion letters fail to state the “how” and “why” it is more
likely than not that the December 2nd procedure was the proximate cause of Plaintiff’s
miscarriage. Plaintiff asks this Court to give great weight to factually unsupported speculation,
conclusory statements, and ipse dixit. While it is possible that the December 2nd procedure may
have led to Plaintiff’s miscarriage, this mere possibility—in the absence of evidence showing
that a jury could find was more likely than not—is not enough for Plaintiff to avoid summary
judgment. Accordingly, Defendant’s Motion for Partial Summary Judgment is GRANTED.
Based on the foregoing, Defendant’s Motion for Partial Summary Judgment is
GRANTED. The Clerk shall REMOVE Document 21 from the Court’s pending motions list.
IT IS SO ORDERED.
__/s/ George C. Smith
GEORGE C. SMITH, JUDGE
UNITED STATES DISTRICT COURT
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