Miller v. United States of America

Filing 42

ORDER granting 28 Motion for Summary Judgment and granting 29 motion to withdraw as attorney. Signed by Honorable David C Norton on 5/13/2013. (gcle, 5/13/13)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
NOEL P. MILLER,
Plaintiff,
vs.
UNITED STATES OF AMERICA,
Defendant.

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No. 2:11-cv-03026-DCN

ORDER

This matter is before the court on a motion for summary judgment brought by the
United States (“the government”). For the reasons set forth below, the court grants the
government’s motion. The court also, sua sponte, reconsiders and grants attorney O.
Fayrell Furr’s previous motion to withdraw from his representation of plaintiff Noel P.
Miller.
I. BACKGROUND
On November 7, 2011, plaintiff Noel Miller filed a Federal Tort Claims Act
(“FTCA”) complaint against the United States. The complaint alleges that surgeons
employed by the Ralph H. Johnson VA Medical Center (“the VA”) negligently
performed two spinal surgeries on Miller in April and June 2007. Compl. ¶¶ 14-17, 2324. Miller alleged that the neurosurgeons who performed these spinal surgeries – Drs.
Abhay Varma and Tanya Quinn1 – departed from the prevailing standards of care and
caused Miller “to undergo additional surgeries, pain and suffering, mental anguish, . . .

At the time of Miller’s surgeries, Tanya Quinn was known as Tanya Jones. Because this
physician now uses the last name Quinn, Decl. of Tanya Quinn ¶ 2, the court will refer to her as
Dr. Quinn.
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disability, and other non-economic damages.”2 Compl. ¶¶ 24-25. Miller alleged that
Drs. Varma and Quinn are federal employees and that the government is liable under the
FTCA for their negligent acts. Compl. ¶ 2, 7-10.
The government filed a motion to dismiss the complaint on October 2, 2012.
Because Dr. Varma is an independent contractor for the VA – and not a federal employee
– the government cannot be liable under the FTCA for Dr. Varma’s alleged negligence.
For this reason, the court dismissed the portions of the complaint that alleged wrongdoing
by Dr. Varma. Order, Dec. 21, 2012. The court refused, however, to dismiss the portions
of the complaint that relate to Dr. Quinn because, as a VA surgical resident, Dr. Quinn
was a federal employee at the time that she participated in Miller’s surgery. Id. at 9.
On February 8, 2013, the government filed the instant motion for summary
judgment. The matter has been fully briefed and is ripe for the court’s review.
II. STANDARD OF REVIEW
Summary judgment shall be granted “if the pleadings, the discovery and
disclosure materials on file, and any affidavits show that there is no genuine dispute as to
any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(c). “By its very terms, this standard provides that the mere existence of some
alleged factual dispute between the parties will not defeat an otherwise properly
supported motion for summary judgment; the requirement is that there be no genuine

Miller’s complaint also alleges that vascular surgeons James P. Stokes and Jacob G. Robison
acted negligently during the course of Miller’s two surgeries. Compl. ¶¶ 16-17, 20. At a hearing
held on December 6, 2012, Miller’s counsel admitted that Drs. Stokes and Robison had not acted
negligently and that Miller needed to remove those surgeons’ names from his complaint. Hr’g
Tr. 6:1-13. Miller has not so amended his complaint. Nevertheless, because the parties agree that
Drs. Stokes and Robison committed no wrongdoing, and because the court has already dismissed
the portions of Miller’s complaint that relate to Dr. Varma, this order addresses only the portions
of the complaint that relate to Dr. Quinn’s alleged negligence.
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issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)
(emphasis in original). “Only disputes over facts that might affect the outcome of the suit
under the governing law will properly preclude the entry of summary judgment.” Id. at
248.
“[A]t the summary judgment stage the judge’s function is not himself to weigh
the evidence and determine the truth of the matter but to determine whether there is a
genuine issue for trial.” Id. at 249. When the party moving for summary judgment does
not bear the ultimate burden of persuasion at trial, it may discharge its burden by
demonstrating to the court that there is an absence of evidence to support the non-moving
party’s case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). The non-movant must
then “make a showing sufficient 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.” Id. at 322.
The court should view the evidence in the light most favorable to the non-moving party
and draw all inferences in its favor. Anderson, 477 U.S. at 255.
III. DISCUSSION
A. The Government’s Motion for Summary Judgment
The government asserts that summary judgment is appropriate because there is
“no evidence upon which a factfinder could reasonably find that Dr. Quinn did anything
of substance in either surgery, much less that whatever she ‘might’ have done deviated
from accepted medical standards.” Def.’s Reply in Supp. of Mot. for Summ. J. 3. In
support of its argument, the government provides the deposition testimony of Dr. Varma
and an affidavit signed by Dr. Quinn.

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In his testimony, Dr. Varma repeatedly states that, while he does not remember
the specifics of Miller’s surgeries, he would have performed most of the procedures. See,
e.g., Test. of Abhay Varma 11:2-4, May 22, 2012 (regarding Miller’s April 2007 surgery:
“I can’t recall offhand. But I think I did most of it – all – probably all of it. [Dr. Quinn]
was just helping.”); Varma Test. 22:3-6 (“I was mainly doing the operation, so she would
be helping me by holding the suction or by retracting the structure out of the way as we
try to complete the procedure.”); Varma Test. 31:6-10 (regarding Miller’s June 2007
revision surgery: “Again, because it was a complicated surgery, I can say most of it was
done by me. I can’t remember exactly what’s – what exact steps were done by her. But
because it’s a complicated surgery, I would have done most of it myself.”).
Dr. Varma’s deposition also addressed whether Dr. Quinn was involved in
placing the screws into the hardware used in Miller’s spinal surgeries.
A. She, again, may have done – helping me, holding the suction or
holding the retractor or clearing the field for me while I was operating.
Q. Did she do any taking the screws out, putting the screws in, things like
that?
A. I can’t remember. I don’t remember.
Q. Is it possible that she did?
A. I can’t say. It’s a long time ago.
Q. How about in the first surgery, is it possible she did some of that on
the first surgery?
A. I can’t say. She might have, because I let my residents put in screws
once we have cleared the field totally and we were ready to put in the
screws. I tell them where to go, how to go, which direction to go. So she
might have done some. But how much she did in the first surgery or
second surgery, right offhand, I can’t say. But going by my general
approach, if it’s a complicated procedure, I generally like to do it all by
myself.

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Varma Test. 31:6-32:5.
Dr. Quinn’s affidavit bolsters Dr. Varma’s deposition testimony:
While I do not specifically recall the surgeries in question, my role as a
resident in the surgeries supervised by Dr. Varma while I was a resident
was as described by Dr. Varma in his deposition. During my surgical
experience as a resident under Dr. Varma, I was never left in the operating
room alone to perform any critical portions of any surgery (including
dissection, exposure, decompression, instrumentation, anthrodesis). Any
other portion of the surgery [in] which I would have participated would
have been under the direct supervision, direction and control of Dr.
Varma. I support Dr. Varma’s description of the surgeries in his
deposition.
Quinn Aff. ¶ 2, Jan. 31, 2013.
Miller argues that the revelation that Dr. Quinn “may have placed some screws”
during Miller’s surgeries is sufficient evidence to “hold the federal government
responsible under the Federal Tort Claims Act for the negligence of Dr. [Quinn] . . . .”
Pl.’s Mem. in Opp. to Mot. for Summ. J. 5. This is a flawed interpretation of the
evidence in this case.
Dr. Varma’s testimony is that he does not remember whether Dr. Quinn placed
any screws during one of the surgeries in question, but, in general, he sometimes allows
residents to do so under his supervision. Dr. Quinn, likewise, recalls neither Miller’s
surgeries nor the role she played in them. These hazy recollections and expressions of
uncertainty do not amount to evidence that Dr. Quinn acted negligently during Miller’s
surgeries. Rather, they are statements that do not shed any light on Dr. Quinn’s actions.
The parties and the court simply do not know whether Dr. Quinn acted negligently, or
even whether she participated in Miller’s surgeries in any meaningful way.

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Because Miller has presented no evidence to support his claims, this case cannot
survive the level of scrutiny required by the Supreme Court in Celotex. Summary
judgment must be granted in favor of the government.
B. Attorney O. Fayrell Furr’s Motion to Withdraw Representation
On February 15, 2013, Mr. Furr filed a motion to withdraw as counsel for Miller.
Mot. to Withdraw, Feb. 15, 2013, ECF No. 29. The court denied that motion without
prejudice on March 13, 2013, ordered Mr. Furr to respond on Miller’s behalf to the
government’s summary judgment motion, and stated that it would “reconsider Mr. Furr’s
motion to be relieved as counsel when it issues its order on the government’s summary
judgment motion.” Order at 2, Mar. 13, 2013, ECF No. 37. Mr. Furr fully complied with
the court’s orders regarding his continued representation of Miller.
The local rules of this district state that “No attorney whose appearance has been
entered shall withdraw his or her appearance or have it stricken from the record except
with leave of the Court.” Local Civil Rule 83.1.07 DSC. Now that the court has
disposed of the government’s summary judgment motion, it considers anew and grants
Mr. Furr’s motion to withdraw as Miller’s attorney.3
IV. CONCLUSION
For the foregoing reasons, the court GRANTS summary judgment in favor of
defendant. The court also GRANTS Attorney Furr’s motion to withdraw as Miller’s
attorney.
AND IT IS SO ORDERED.

Because the court grants Mr. Furr’s request to withdraw, Miller is, at the moment, effectively
pro se. The court notes that Miller has the right to appeal this decision to the Fourth Circuit Court
of Appeals within 60 days from the date of this order. See Fed. R. App. P. 4(b).
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________________________________
DAVID C. NORTON
UNITED STATES DISTRICT JUDGE

May 13, 2013
Charleston, South Carolina

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