Garcia v. United States of America

Filing 20

MEMORANDUM OPINION AND ORDER granting 17 Motion for Summary Judgment filed by United States of America. The court ORDERS that defendant's motion for summary judgment be, and is hereby, granted; that plaintiff take nothing on his claims against defendant; and that such claims be, and are hereby, dismissed. (Ordered by Judge John McBryde on 6/9/2017) (npk)

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NORTHERN DISTRTCT OF TEXAS
IN THE UNITED STATES DISTRIC COURT
NORTHERN DISTRICT OF TEX S
FORT WORTH DIVISION

JUN - 9 20l7

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Plaintiff,

CLI:,

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DENNIS GARCIA,

BY~~~---:::-~~~~~­
Deputy

vs.

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UNITED STATES OF AMERICA,

C.:OURT

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NO. 4:16-CV-963-A

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Defendant.

MEMORANDUM OPINION AND ORDER
Came on for consideration the motion of defendant, United
States of America, for summary judgment. Plaintiff, Dennis
Garcia, has failed to respond to the motion, which is ripe for
ruling. The court, having considered the motion, the record, the
summary judgment evidence, and applicable authorities, finds that
the motion should be granted.
I.

Plaintiff's Claims
Plaintiff brings this action pursuant to the Federal Tort
Claims Act ("FTCA"), raising claims of medical malpractice.
Plaintiff says that he suffered severe eye pain and headaches
unnecessarily for years, from 2012 until January 2016, when his
right eye was removed. Doc. 1 1.

1

The "Doc.

" reference is to the number of the item on the docket in this action.

II.
Ground of the Motion
Defendant says that plaintiff's failure to designate an
expert to establish the standard of care and breach thereof is
fatal to his claims.
III.
Applicable Legal Principles
Rule 56(a) of the Federal Rules of Civil Procedure provides
that the court shall grant summary judgment on a claim or defense
if 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); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247
(1986) .

The movant bears the initial burden of pointing out to

the court that there is no genuine dispute as to any material
fact.

Celotex Corp. v. Catrett, 477 U.S. 317, 323, 325 (1986).

The movant can discharge this burden by pointing out the absence
of evidence supporting one or more essential elements of the
nonmoving party's claim,

"since a complete failure of proof

concerning an essential element of the nonmoving party's case
necessarily renders all other facts immaterial."

Id. at 323.

Once the movant has carried its burden under Rule 56(a), the
nonmoving party must identify evidence in the record that creates
a genuine dispute as to each of the challenged elements of its

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case.

Id. at 324; see also Fed. R. Civ. P. 56(c)

asserting that a fact
the assertion by
the record

("A party

is genuinely disputed must support
citing to particular parts of materials in

.").

If the evidence identified could not lead

a rational trier of fact to find in favor of the nonmoving party
as to each essential element of the nonmoving party's case, there
is no genuine dispute for trial and summary judgment is
appropriate.

Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

475 U.S. 574, 587, 597 (1986).

In Mississippi Prat. & Advocacy

Sys., Inc. v. Cotten, the Fifth Circuit explained:
Where the record, including affidavits,
interrogatories, admissions, and depositions could not,
as a whole, lead a rational trier of fact to find for
the nonmoving party, there is no issue for trial.
929 F.2d 1054, 1058 (5th Cir. 1991).
The standard for granting a motion for summary judgment is
the same as the standard for rendering judgment as a matter of
law. 2

Celotex Corp., 477 U.S. at 323.

If 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.
Matsushita, 475 U.S. at 597; see also Mississippi Prot. &
Advocacy Sys., 929 F.2d at 1058.

2

In Boeing Co. v. Shipman, 411F.2d365, 374-75 (5th Cir. 1969) (en bane), the Fifth Circuit
explained the standard to be applied in determining whether the court should enter judgment on motions
for directed verdict or for judgment notwithstanding the verdict.
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IV.
Analysis
The FTCA authorizes civil actions for damages for medical
malpractice under circumstances in which a private person would
be liable under the substantive law of the state where the
alleged wrongful acts occurred. Hannah v. United States, 523 F.3d
597, 601

(5th Cir. 2008). Plaintiff alleges that the malpractice

occurred in Texas. Thus, to prevail on his claims, plaintiff must
prove (1) the physician's duty to act according to an applicable
standard of care;

(2) a breach of that duty;

(3) an injury; and

(4) a causal connection between the breach of care and the
injury. Id.; Quijano v. United States, 325 F.3d 564, 567 (5th
Cir. 2003). The standard of care in Texas is one of ordinary care
"to render care to a patient with the degree of ordinary prudence
and skill exercised by physicians of similar training and
experience in the same or similar community under the same or
similar circumstances.n Hollis v. United States, 323 F.3d 330,
336

(5th Cir. 2003). To establish breach of that standard of

care, the plaintiff must show that the act or omission of the
physician fell below the appropriate standard of care and was
negligent. Id. And, unless the mode or form of treatment is a
matter of common knowledge within the experience of laymen,
expert testimony is necessary to establish the standard of care

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and breach thereof. Hannah, 523 F.3d at 601-02; Jelinek v. Casas,
328

s. W. 3d

526, 533

(Tex. 2010) .

Here, plaintiff's claims arise out of the diagnosis and
treatment of vision loss in his right eye leading to its
enucleation. Expert testimony is clearly required. Plaintiff was
required to designate experts by March 25, 2017

(120 days before

trial). Doc. 13 at 5, , 14. He has not done so. Nor has he come
forward with any summary judgment evidence to establish his
claims.
V.

Order
The court ORDERS that defendant's motion for summary
judgment be, and is hereby, granted; that plaintiff take nothing
on his claims against defendant; and that such claims be, and are
hereby, dismissed.
SIGNED June 9, 2017.

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