Herndon v. United States of America

Filing 53

Memorandum Opinion and Order... The court ORDERS that plaintiff's motion for extension of time be, and is hereby, denied. The court further ORDERS that United States' motion for summary judgment be, and is hereby, granted; that plaintiff take nothing on her claims against United States; and that such claims be, and are hereby, dismissed with prejudice. (Ordered by Senior Judge John McBryde on 6/1/2020) (wxc)

Case 4:19-cv-00148-A Document 53 Filed 06/01/20

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IN

DAWN HERNDON,

§

§

Plaintiff,

§
§

vs.

§
§

UNITED STATES OF AMERICA,

§

NO. 4:19-CV-148-A

§

Defendant.

§

MEMORANDUM OPINION AND ORDER
Came on for consideration the motion of United States of
America for summary judgment. Instead of responding to the
motion, plaintiff, Dawn Herndon,

filed yet another motion for

extension of time to respond. For the reasons that follow,

the

court finds that plaintiff's motion should be denied and that
the motion for summary judgment should be granted.
I.
Background
On January 10, 2019, plaintiff filed her complaint in this
case. Doc.

1

3. On September 10, 2019,

the court issued its order

setting schedule and providing special pretrial instructions.
Doc.

34. The order set a deadline of March 27,

completion of discovery.

Id. at 2, , 4. The case was set for

nonjury trial the week of April 27, 2020. Id.

1

The

case.

11

Doc.

2020, for

,

6.

reference is to the number of the item on the docket in this

Case 4:19-cv-00148-A Document 53 Filed 06/01/20

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On December 30, 2019, United States filed her motion for
summary judgment, brief, and appendix in support. Docs. 35, 36,
37, 38. On January 21, 2020, plaintiff filed a motion for stay
or, in the alternative, motion for extension of time to respond,
stating that she was "in the process of obtaining discovery,
including medical records,

inmate transfer records, witness

affidavits, expert witness [sic] and depositions." Doc. 40 at 1.
The court granted the alternative motion, giving plaintiff until
March 25, 2020, in which to file her summary judgment response.
Doc. 41. On March 25, 2020, plaintiff filed a second motion for
extension of time to respond to the summary judgment motion.
Doc. 45. In it, plaintiff explained among other things her need
for medical records that she had not been able to obtain. By
order signed March 27, 2020, the court granted the motion,
giving plaintiff an extension of time until May 29, 2020, in
which to file her response. Doc. 46. The court also ordered
United States to provide to plaintiff by April 3, 2020, copies
of all documents responsive to the requests reflected in the
attachments to plaintiff's motion and to file a document
reflecting that the documents had been delivered to plaintiff
and giving a description of each document or group of documents.'
Id. On April 3, 2020, the United States filed her response to

2

As United States has subsequently noted, plaintiff never served proper
discovery requests. United States has attempted on numerous occasions to work
with plaintiff to provide materials she says she needs. See Docs. 43, 47, 51.

2

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the March 27 order, giving a description of all of the documents
provided to plaintiff. Doc. 47. Plaintiff did not file any
response to that document or otherwise complain that she had not
been provided all her medical records as requested until the day
her summary judgment response was due, May 29, 2020, when she
filed a third motion for extension of time to respond to the
motion for summary judgment. Doc. 50.
As United States notes in her response to the third motion
for extension of time, plaintiff has had ample time in which to
prepare her summary judgment response. Doc. 51. The record does
not reflect that plaintiff has exercised diligence in seeking
allegedly missing documents. Rather, she waits until a deadline
before seeking any relief. She admits that she received the disk
containing documents provided by United States on April 3, 2020.
Doc. 50 at 1. She believed she had not been provided a complete
copy of her medical records, yet she did not seek any relief
from the court until May 29, 2020. Doc. 50 at 2. The court has
no reason to believe that a further extension of time would
accomplish anything except delay.

II.
Ground of the Summary Judgment Motion
united States contends that plaintiff must provide expert
testimony to establish her claim. She has not come forward with
any evidence to establish a genuine issue of material fact.
3

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III.

Applicable Summary Judgment 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 case.

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

party asserting that a fact
support the assertion by .
materials in the record .

("A

. is genuinely disputed must
citing to particular parts of
• JJ) •

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
4

Case 4:19-cv-00148-A Document 53 Filed 06/01/20

party's case,

there is no genuine dispute for trial and summary

judgment is appropriate.
Radio Corp.,

Page 5 of 8 PageID 407

475 U.S.

Matsushita Elec.

574,

Prot. & Advocacy Sys.,

587, 597

(1986).

Inc. v. Cotten,

Indus. Co. v. Zenith
In Mississippi

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

(5~

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.

3

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.
IV.
Analysis

The Federal Tort Claims Act, 28 U.S.C.

§§

1346(b), 2671-80,

("FTCA") gives federal courts jurisdiction over claims against

3
In Boeing Co. v.

Shipman 1 411 F.2d 365, 374-75 (sth 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.

5

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the United States for money damages for injuries caused by the
negligent or wrongful act or omission of a government employee
under circumstances where the United States, if a private
person, would be liable to the claimant in accordance with the
law of the place where the act or omission occurred. Sheridan v.
United States, 487 u.s. 392, 398

(1988) (quoting 28 U.S.C.

§1346(b)). Because plaintiff's alleged injuries occurred at FMC
Carswell, Texas law applies. Ayers v. United States, 750 F.2d
449, 452 n.1

(5~

Cir. 1985).

Texas law imposes on treating physicians a duty to exercise
that degree of care which a general practitioner of ordinary
prudence and skill, practicing in the community or similar
community, would have exercised in the same or similar
circumstances. Edwards v. United States, 519 F.2d 1137, 1139 (5th
Cir. 1975). The plaintiff bears the burden of proving (1) the
physician's duty to act according to an applicable standard of
care,

(2) a breach of that standard of care,

(3)

injury, and (4)

causation. Hannah v. United States, 523 F.3d 597, 601

(5th Cir.

2008). Standard of care is the threshold issue and must be
established by expert testimony unless the mode or form of
treatment is a matter of common knowledge or is within the
experience of a lay person. Id., 523 F.3d at 601-02; Quijano v.
United States, 325 F.3d 564, 567 (5th Cir. 2003). Expert
testimony is also required to establish that the breach
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proximately caused the harm suffered by the plaintiff. Guile v.
United States, 422 F.3d 221, 225
769 S.W.2d 644,

646

(5th Cir. 2005); Garza v. Levin,

(Tex. App.--Corpus Christi 1989, writ

denied) .
This is not the type of case where breach and causation can
be determined without expert testimony. See Haddock v.
Arnspiger, 793 S.W.2d 948, 951 (Tex. 1990) (giving as examples
operating on the wrong part of the body or leaving sponges
within a body) . Plaintiff had a pre-incarceration history of
colon cancer and a colostomy. Her claims arise out of medical
care for her colostomy. She first alleges that she was denied
medical supplies when she was transported to FMC Carswell, but
the record belies that contention. Doc. 37 at 159, 160. The
medical records reflect that she was seen and treated on
numerous occasions. These visits are summarized at pages 3-9 of
United States' brief and will not be repeated here. Doc. 36.
Whether a particular treatment or lack thereof caused her to
suffer is not a matter of common knowledge of laymen.•
Where, as here, expert testimony is required and no expert
has been designated, summary judgment is appropriate. Bradfield

4

Even though the court is not persuaded that such is the case, to the extent
that any of plaintiff 1 s claims could have been established without expert
testimony, plaintiff has not come forward with any summary judgment evidence
to raise a genuine fact issue although she has had ample time in which to do
so.

7

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v. United States ex rel. Dep't of Veteran's Affairs, 4 71 F. App'x
364, 365-66

(5th Civ. 2012); Prindle v. United States, No. 4:10-

CV-54-A, 2011 WL 1869795, at *1-2

(N.D. Tex. May 13, 2011);

Woods v. United States, No. 3:08-CV-1670-D, 2010 WL 809601 (N.D.
Tex. Mar. 8, 2010). Plaintiff cannot establish the standard of
care or that United States breached that standard of care.

v.
Order
The court ORDERS that plaintiff's motion for extension of
time be, and is hereby, denied.
The court further ORDERS that United States' motion for
summary judgment be, and is hereby, granted; that plaintiff take
nothing on her claims against United States; and that such
claims be, and are hereby, dismissed with prejudice.
SIGNED June 1, 2020.

U ited States District v'dge

8