Noftsger v. The United States of America

Filing 22

ORDER granting 15 Motion for Summary Judgment. Signed by Chief Judge Jeffrey L. Viken on 3/11/14. (SB)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
NORMAN NOFTSGER,
Plaintiff,
vs.
UNITED STATES OF AMERICA,
Defendant.

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CIV. 12-5019-JLV

ORDER

INTRODUCTION
On January 28, 2013, the government filed a motion for summary
judgment. (Docket 15). Pursuant D.S.D. Civ. LR 56.1(A), the government
submitted its statement of undisputed material facts and supporting
documentation. (Dockets 17 and 18). Plaintiff filed a legal memorandum in
response to the government’s motion. (Docket 19). In opposing the
government’s motion for summary judgment, the plaintiff did not file a
response to the government’s statement of undisputed material facts or a
separate document identifying any material facts to which there is a genuine
dispute. See D.S.D. LR Civ. 56.1(B). For the reasons below, the
government’s motion for summary judgment is granted.

DISCUSSION
On March 30, 2012, plaintiff filed a complaint1 against the Veterans
Administration under the Federal Tort Claims Act, 28 U.S.C. § 2671, et seq.
(Docket 1). The essence of Mr. Noftsger’s federal tort claim is that “[t]he
dental care, specifically including periodontal care, which Norman Noftsger
did receive . . . was below the applicable legal standard of adequate dental
care, which fact was at all times concealed from Norman Noftsger.” Id. at
¶ 21. The government filed an answer on June 1, 2012. (Docket 11). The
government’s answer asserted the “United States, through its employees
and agents, acted with due care and diligence at all relevant times. . . . [and]
[t]here exists no proximate cause between any alleged act, omission or
breach of duty by the United States and all or part of Plaintiff’s injuries or
damages.” Id. at p. 8 ¶¶ 3 & 4.
On January 28, 2013, the government filed a motion for summary
judgment. (Docket 15). The basis for the government’s motion is “because
plaintiff failed to provide expert testimony or opinions in support of his
dental malpractice claim and, thus, cannot prove a deviation from the
appropriate standard of care and causation.” (Docket 16 at p. 1). Plaintiff
“concede[d] both grounds of Defendant’s argument . . . .” (Docket 19 at p.

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Plaintiff filed an administrative claim with the Veterans Administration
which was denied on October 3, 2011. (Docket 1 at ¶ 8).
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4). “Plaintiff’s opposition is based on the following: (A) As with Lewis,2 there
is no point in Plaintiff[] designating experts before the issue of the permitted
scope of discovery in these cases has been resolved; and (B) Accordingly,
under the present circumstances, summary judgment is an inappropriate
remedy for a substantially justified and harmless failure to meet the present
scheduling order’s expert designation deadline.” Id. Plaintiff argues “[i]n
both Lewis and the present proceeding, it is too early to tell to what extent
the plaintiff[‘s] injuries are the result of direct negligence by the medical
personnel involved and to what extent those injuries are due to the
negligence of § 7316(a)(2) ‘other supporting personnel.’ ” Id. Plaintiff
believes the court’s ruling on a motion to amend the complaint in Lewis “is
likely to shape (if not, dictate) the discovery requests deemed permissible,
the types of evidence that will be ruled admissible, and the fields of
expertise (and, thereby the identities) of the experts to be designated in the
present proceeding.” Id. (bold and capitalization omitted).
On June 19, 2012, the court filed an order for a Form 52 Report.
(Docket 12). The parties’ Form 52 Report was filed on June 28, 2012.
(Docket 13). Plaintiff agreed his expert designations and reports would be
provided to the government “on or before October 31, 2012.” Id. at ¶ 17.

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Merrill R. Lewis v. United States of America, 5:11-cv-5081-JLV (D.S.D.

2013).
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On June 29, 2012, the court filed a scheduling order. (Docket 14). The
scheduling order required that “[t]he identity of and reports from retained
experts under Rule 26(a)(2) shall be due from plaintiff by October 31, 2012,
and . . . any supplementations thereto under Rule 26(e) shall be due thirty
(30) days prior to trial. Any expert not so designated will not be permitted to
testify at trial.” Id. at ¶ 7 (bold omitted).
On March 25, 2013, while the government’s summary judgment
motion was pending, the court filed an order in Lewis denying plaintiff’s
motion to include a count for “denial of veterans benefits.” Lewis, 5:11-cv5081-JLV (Docket 20 at p. 2). The court concluded “[t]o establish a medical
negligence case [Mr. Lewis] must show ‘how’ he was harmed, not ‘why’ he
received substandard care. It makes no difference in this case whether the
VA hospital was underfunded or whether certain employees received
performance bonuses. The proper focus of [Mr. Lewis’] claim is whether
medical personnel at the VA exercised the degree of care, skill and
proficiency customarily exercised by hospital personnel engaged in similar
patient care under the same or similar circumstances.” Id. at p. 9. “In
South Dakota the ‘mechanism’ or ‘legal theory’ to support a medical
malpractice claim is the failure to follow the appropriate standard of care.”
Id.

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The deadline for designation of plaintiff’s experts expired on October
31, 2012. (Docket 14 at ¶ 7). Plaintiff argues that, notwithstanding the
court’s scheduling order, this case is still more than 90 days from trial, so
plaintiff’s “technical violation” of the scheduling order is insignificant and
the government is not “prejudiced by the delay.” (Docket 19 at p. 7)
(emphasis in original) (citing Fed. R. Civ. P. 26(a)(2)(C)).3 “Plaintiff’s delay in
designating experts is, thus, both substantially justified and harmless.” Id.
at p. 9.
The Federal Rules of Civil Procedure emphasize the importance of
compliance with the rules. The rules “should be construed and
administered to secure the just, speedy, and inexpensive determination of
every action and proceeding.” Fed. R. Civ. P. 1. After consultation with the
parties, the court’s scheduling order was generated for that very reason.
See Fed. R. Civ. 16(b)(1)(A). Under Rule 16, the court’s scheduling order
may only be modified “for good cause and with the judge’s consent.” Fed. R.
Civ. P. 16(b)(4).
Plaintiff fails to “make the requisite showing” of “good cause.”
Bradford v. DANA Corp., 249 F.3d 807, 809 (8th Cir. 2001). “The primary
measure of Rule 16’s ‘good cause’ standard is the moving party’s diligence in

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The correct citation is Fed. R. Civ. P. 26(a)(2)(D)(i). “Absent . . . a court
order, the disclosures must be made . . . at least 90 days before the date set for
trial . . . .”
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attempting to meet the case management order’s requirements.” Id. Even if
the court was to give any credence to Mr. Noftsger’s claim he was waiting for
a decision in Lewis to determine which expert witnesses he would need, it is
now 12 months since the court’s ruling in Lewis and 17 months after
plaintiff’s deadline for designation of experts expired. Mr. Noftsger did not
seek relief from the court’s scheduling order. The court need look no further
than plaintiff’s lack of diligence and the absence of excusable neglect in
failing to comply with the court’s scheduling order. See Fed. R. Civ. P.
6(b)(1)(B). (“When an act . . . must be done within a specified time, the
court may, for good cause, extend the time . . . on motion made after the
time has expired if the party failed to act because of excusable neglect.”).
Having failed to produce an expert witness to support plaintiff’s dental
malpractice claim, Mr. Noftsger cannot prove a deviation from the applicable
standard of care. Magbuhat v. Kovarik, 382 N.W.2d 43, 46 (S.D. 1986) (“a
verdict in a malpractice case based on inferences stemming from
speculation and conjecture cannot stand.”). The government “is entitled to
judgment as a matter of law because the [plaintiff] has failed to make a
sufficient showing on an essential element of [his] case with respect to
which [he] has the burden of proof.” Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986).

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ORDER
Based on the above analysis, it is hereby
ORDERED that the government’s motion for summary judgment
(Docket 15) is granted.
IT IS FURTHER ORDERED that plaintiff’s complaint (Docket 1) is
dismissed with prejudice.
Dated March 11, 2014.
BY THE COURT:
/s/ Jeffrey L. Viken
JEFFREY L. VIKEN
CHIEF JUDGE

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