Winston v. United States et al
Filing
52
MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 9/9/13. Copy sent: Yes(tdai, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division
MONTE DECARLOS WINSTON,
Plaintiff,
v.
Criminal No.
3:llcv812
UNITED STATES OF AMERICA,
Defendant.
MEMORANDUM OPINION
Monte
se,
DeCarlos
Winston,
federal
prisoner
proceeding pro
filed this complaint pursuant to the Federal Torts Claim Act
PFTCA"),
28 U.S.C.
§§ 1346,
pursuant to 28 U.S.C.
M.
a
Anderson
resulted
Defendant
in
2671-2689,
§ 1331.
negligently
injury
to
submitted
a
Winston alleges that Dr. Kathleen
performed
Winston's
motion
with jurisdiction vested
to
a
tooth
dental
and
dismiss
or,
30,
provided appropriate Roseboro2 notice.
has responded.
{ECF No. 37.)
1 Defendant
dismissed
because
argues
of
gum.
(ECF Nos.
motion for summary judgment.1
procedure
which
(Compl.
alternatively,
31.)
(ECF No.
1.)
a
Defendant
33.)
Winston
The matter is ripe for judgment.
that
Winston's
Winston's
failure
Complaint
to
comply
should
be
with
the
mandatory expert certification requirement set forth in the
Virginia Medical Malpractice Act,
Va. Code Ann.
§ 8.01-20.1
(2013) ("VMMA"), and in the alternative, that Dr. Anderson was
qualified to perform Winston's tooth extraction.
2 Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975).
For
the
reasons
stated below,
the
Court
will
grant
the
motion
for summary judgment.
I.
OUTSTANDING MOTIONS
Winston has filed two motions pursuant to Federal Rules of
Civil Procedure 36 and 56(f) asking the Court to order Defendant
to answer interrogatories and a request for admission
35-36
("Rule
56(f)
Motions")),
contesting the
ripeness
ruled
two
on
his
of
the
discovery
and
case
an
additional
because
requests
(ECF Nos.
the
Court
(ECF No.
42
motion
has
not
("Ripeness
Motion").)
As
where
a
general
the
discover
rule,
nonmoving
information
"summary
party
has
that
Anderson v. Liberty Lobby,
is
judgment
not
had
essential
[must]
the
to
Inc., 477 U.S.
be
refused
opportunity
his
to
opposition."
242, 250 n.5
(1986).
Rule 56(f) "permits a court to deny summary judgment or to order
a continuance if the nonmovant shows through affidavits that it
could not properly oppose a motion for summary judgment without
a chance to conduct discovery."
Serv.
Co.,
affidavit
will
80 F.3d 954,
must
961
specifically
turn up and
how that
oppose summary judgment.
Evans v. Techs. Applications &
(4th Cir.
identify
1996).
what
A "Rule 56(f)
evidence
evidence will allow
The affidavit
should
specif[y] legitimate needs for further discovery.'"
discovery
the party to
'particularly
Hamilton v.
Geithner,
No.
June
2009)
15,
Corp.,
44
submit
the
F.3d
Motions.
to
file
I:08cvlll2
an
2009 WL 1683298,
(alteration in original)
234,
242
requisite
Evans,
(JCC),
80
(4th
F.3d at
1995)).
in
support
affidavit
961
under
(E.D.
Va.
(quoting Nguyen v. CNA
Cir.
affidavit
at *6
Winston
of
his
fails
Rule
to
56(f)
(emphasizing that "the failure
Rule
56(f)
is
itself
sufficient
grounds to reject a claim that the opportunity for discovery was
inadequate"
1132,
1137
Accordingly,
(quoting
(2d Cir.
Paddington
1994)
Partners
v.
Bouchard,
34
F.3d
(internal quotation marks omitted))).
Winston's Motions
(ECF Nos.
35-36)
will be denied.
Winston's Ripeness Motion (ECF No. 42) will be denied as moot.
II.
WINSTON'S
ALLEGATIONS
In his Complaint, Winston alleges that:
On 10-26-10[,] K. Anderson DHD[,] while working in the
dental
department
of
F.C.C.
Petersburg
(Med)[,]
performed
a
dental
procedure
that
she
was
not
qualified to perform and it resulted in an injury to
my tooth and gum that is still injured.
The dental
department at Petersburg F.C.C. (Med) violated Federal
Policy by allowing K. Anderson DHD to perform a dental
procedure that she was not qualified to perform, and
without
assistance
from
a
qualified
dental
professional.
She
also
administered
numbing
medication without proper credentials.
(Compl. 1.)
Winston requests $50,000 in monetary damages for
pain and suffering.
(Id. at 2.)
III.
SUMMARY JUDGMENT
STANDARD
Summary judgment must be rendered "if the movant shows that
there
is
movant
Civ.
no
is
P.
genuine
entitled
56(a).
dispute
to
The
as
to
judgment
party
as
any
material
a matter
seeking
of
summary
fact
and
Fed.
law."
judgment
the
R.
bears
the
responsibility to inform the court of the basis for the motion,
and to
identify the
parts
of
the
record which demonstrate
absence of a genuine issue of material fact.
v.
Catrett,
477
U.S.
317,
323
(1986).
issue,
a
reliance
summary
solely
interrogatories,
quotation
judgment
on
the
motion
and admissions on
marks
omitted).
trial
may
pleadings,
See Celotex Corp.
"[W]here
party will bear the burden of proof at
the
be
the
Id.
made
in
answers
depositions,
When
nonmoving
on a dispositive
properly
file."
the
to
at
324
(internal
motion
is
properly
supported, the nonmoving party must go beyond the pleadings and,
by
citing
affidavits
interrogatories,
facts
and
or
admissions
showing that there
"^depositions,
on
file,'
is a genuine
designate
issue
for
(quoting former Fed. R. Civ. P. 56(c) and 56(e)
In
draw
reviewing
all
justifiable
party."
United
832,
835
(4th
Cir.
477
U.S.
242,
Inc.,
summary
a
States
inferences
v.
1992)
255
judgment
in
Carolina
(citing
(1986)).
to
^specific
trial.'"
Id.
(1986)).
motion,
favor
answers
the
court
"must
of
the
nonmoving
Transformer
Co.,
978
Anderson
However,
v.
Liberty
a mere
F.2d
Lobby,
scintilla of
evidence will not preclude summary judgment.
at 251 (citing Improvement Co.
442,
448
(1872)).
v.
Anderson, 477 U.S.
Munson,
81 U.S.
(14 Wall.)
"MT]here is a preliminary question for the
judge, not whether there is literally no evidence,
but whether
there is any upon which a jury could properly proceed to find a
verdict
for the party . . . upon whom the onus of proof is
imposed.'"
Id_;_ (quoting Munson, 81 U.S. at 448).
Additionally,
"'Rule 56 does not impose upon the district court a duty to sift
through the record in search of evidence to support a party's
opposition
1527,
to
summary
1537 (5th Cir.
Inc., 953 F.2d 909,
P.
56(c)(3)
• • • •").
pertinent
2)),
and
v.
(quoting Skotak v.
Barr,
19
F.3d
Tenneco Resins,
915 & n.7 (5th Cir. 1992)); see Fed. R. Civ.
In support of its Motion for Summary Judgment,
here,
Supp.
1994)
Forsyth
("The court need consider only the cited materials
the
Kathleen Anderson,
(Mem.
judgment.'"
Defendant
D.M.D.,
Mot. Summ. J.
medical
records
submits
the
affidavit
of
as
Dr.
a Dental Officer at FCC Petersburg
Ex.
2 ("Anderson Aff.")
from Winston's
visits
(ECF No.
to
the
32-
Dental
Clinic (Anderson Aff. Attachs. 1-6).
As a general rule,
a non-movant must respond to a motion
for summary judgment with affidavits or other verified evidence.
Celotex Corp.,
477
U.S.
at
324.
Winston
unsworn response and memorandum in support.
responded
with an
(ECF Nos. 37-38.)
In light
of the
following facts
are
foregoing principles
All
permissible
inferences
are drawn
in
a
by
of Winston.
IV.
Kathleen
the
the
established for the purposes of the Motion
for Summary Judgment.
favor
and submissions,
M.
of
Dental
2010,
licensed
is
Massachusetts
Officer
Service since 1996.
FACTS
D.M.D,
Anderson,
Commonwealth
Commissioned
UNDISPUTED
in
the
and
United
(Anderson Aff.
as
has
served
States
511 1-2.)
dentist
as
Public
a
Health
On September 20,
the BOP granted dental practice privileges to Dr. Anderson
to serve as a Dental Officer at the Federal Correctional Complex
in Petersburg,
Virginia
(Id. 11 1, 6.)
("FCC Petersburg").
Anderson's
privileges
included
including,
a
but not limited to,
variety
of
dental
Dr.
procedures
(Id. 1
surgery and extractions.
6.)
Dr.
Dental
Anderson
treated
Clinic.
"presented with
molar
(Tooth
#17)
soft,
tooth
(Id.)
Winston
Dr.
was
decayed
had
(Id.
1
a
on
On
possible complications
October
area
in
occasions
22,
his
2010,
lower,
the
Winston
left,
Anderson determined that
and
form
needed
procedure
which
of the procedure.
to
be
soft
3rd
9.)
Dr.
[the]
in
into
discussed the
consent
several
extended
non-restorable
Anderson
signed
8. )
which
center of his tooth."
"the
1
(Id.
a
Winston
tissue
extracted."
with Winston,
notified
Winston
and
about
(Id.; see Attach.
3,
at
1.)
Dr.
Anderson explains that "[t]he consent formed signed
by Mr.
Winston mistakenly states that his
(Tooth
#18)
was
being
removed,
however,
Tooth
the tooth that was non-restorable and was
Aff.
SI 9; Attach.
On
October
molar,
toothache.
2010,
visited
1
(Id.
#17
was
extracted."
in
fact
(Anderson
3, at 1.)
26,
Winston
lower left 2nd molar
10;
after
the
the
Dental
Attach.
4,
at
extraction
Clinic
1.)
of
Winston's
complaining
Dr.
of
a
Anderson examined
Winston and "determined that a part of the molar's mesial
root
1
10;
remained
Attach.
common
following
4,
at
the
2.)
Dr.
occurrence,
complications
on
(Anderson Aff.
1
extraction."
and
explains
[was]
listed
consent
the
10;
Anderson
(Anderson
form
see Attach.
as
that
one
signed
3, at
1.)
Aff.
"[t]his
of
by
Dr.
the
Mr.
possible
Anderson advised
(Anderson
1 10.)
Winston
2010,
a
Winston."
Winston to take Ibuprofen and prescribed Amoxicillin.
Aff.
is
visited
complaining
additional
Anderson
treating
of
antibiotics
had
November 5,
the
prescribed
2010.
Dental
Dental
pain
in
and
pain
a
(Id^ SI
Officer
Clinic
the
gum
noted
5,
Winston's
November
and
even
quantity
see Attach.
that
on
area,
medicine,
sufficient
11;
again
to
3,
seeking
though
Dr.
last
until
at 1-2.)
The
"extraction
was
healing within normal limits" and refused to provide additional
medications.
(Anderson Aff. SI 11; see Attach.
5, at 1-2.)
On
April
performed
by
26,
an
2011,
Oral
"*radio-opaque
SI
Aff.
part of his
6, at 1.)
rare,
jaw,
"as
revealed
distal
12;
diagnosed Winston
post-operative
Surgeon
lesion
(Anderson
Winston's
to
Attach.
having
6,
a
that
root
at
radiograph
Winston
sockets
1.)
#17.'"
Oral
The
(Anderson Aff.
a
of
Surgeon
supernumerary tooth in
Tooth #17a."
had
SI 12;
the back
see Attach
Dr. Anderson explains that "[s]upernumerary teeth are
and are
extra
teeth
that
are
present
normal permanent adult teeth.
Generally,
not cause any complications."
(Anderson Aff.
V.
in
addition
to the
supernumerary teeth do
SI 12.)
ANALYSIS
The FTCA creates a limited waiver of the sovereign immunity
of
the
United
injuries
acting
States
"by
caused
by
tortious
within
the
the
scope
of
authorizing
damages
conduct
their
of
actions
federal
employment,
employees
when
a
private
person would be liable for such conduct under state law."
v.
United States,
441 F.3d 306,
U.S.C. § 1346(b)(1)).
courts
apply the
governs
liable."
"the
Parker
28 U.S.C.
manner
v.
2006)
Suter
(citing 28
In actions brought pursuant to the FTCA,
substantive law of the
or omission occurred.
law
310 (4th Cir.
for
and
United
state
§ 1346(b)(1).
extent
States,
to which
475
F.
in which the
Thus,
Virginia
[Winston]
Supp.
2d
act
may
594,
be
596
(E.D. Va. 2007)
(4th Cir.
(citing Starns v. United States,
1991)) .
The VMMA requires
party
alleging
certification
from
the
that,
medical
of
merit
applicable
prior to
serving the
malpractice
indicating
standard
of
must
that
care
and
defendant,
obtain
the
proximate cause of the injuries claimed."
20.I.3
923 F.2d 34, 37
an
defendant
the
Va.
expert
"deviated
deviation
Code Ann.
was
If a plaintiff fails to obtain a necessary certifying
"the
3 Specifically, Va. Code Ann. § 8.01-20.1 states as follows
Every motion for judgment,
counter claim,
or
third party claim in a medical malpractice action, at
the time the plaintiff requests service of process
upon a defendant . . . shall be deemed a certification
that
the
plaintiff
has
obtained
from
an
expert
witness ... a written opinion signed by the expert
witness that, based upon a reasonable understanding of
the facts,
the defendant
. . . deviated from the
applicable standard of care and the deviation was a
proximate cause of the injuries claimed.
Upon
written
request
of
any
. . .
defendant,
the
plaintiff shall, within 10 business days after receipt
such
request,
provide
the
defendant
with
a
certification form that affirms that the plaintiff had
obtained the necessary certifying expert opinion at
the
time
service
was
requested
or
affirms
that
the
plaintiff did not need to obtain a certifying expert
witness opinion.
If the plaintiff did not obtain a
necessary certifying expert opinion at the time the
plaintiff requested service of process on a defendant
as required under this section, the court shall impose
sanctions
prejudice.
Id.
a
§ 8.01-
expert opinion at the time the plaintiff requested service,
of
a
.
.
.
and
may
dismiss
the
case
with
court shall impose sanctions . . . and may dismiss the case with
prejudice."
Id.;
see
(citations omitted).
excused
"if
malpractice
expert
the
action
negligence
knowledge
requirement
plaintiff,
testimony
that
is
F.
where
in
asserts
exception "applies only in
theory
alleges
596-97
of
Ann.
is
medical
alleged
the
where
act
of
jury's
common
8.01-20.1.
§
^rare instances'
a
liability
the
range
Code
at
certification
of
because
Va.
2d
a limited exception to
faith,
a
within the
experience."
Supp.
expert
good
unnecessary
clearly lies
and
475
The VMMA provides
certification
the
Parker,
This
because only rarely
do the alleged acts of medical negligence fall within the range
of
a
jury's
Parker,
v.
or
factfinder's
475 F. Supp.
Nichols,
441
Sponsors
of
(4th Cir.
common
2d at 597
S.E.2d
3
experience."
(quoting Beverly Enter.-Va.,
(Va.
October
Winston
with
Supp.
11,
a written
the
expert
Summ.
Defendant
Research
and
1994));
2012,
Study,
Defendant
certification
v.
Unnamed
254,
1,
with
the
certification
undisputed
that
certification
VMMA.
of
App'x
formally
at
requirement
Ex.
the
F.
Keitz
255-56
requested
certification affirming Winston's
J.
required by
510
see
Inc.
2013) .
On
Cocaine
1,
knowledge
See
Winston
merit
1).
Va.
Winston
10
form
Code
failed
prior
of
to
the
within
Ann.
§
to
provide
serving
compliance
VMMA.
failed
from
to
ten
(Mem.
provide
days
8.01-20.1.
an
process
It
as
is
expert
on
the
Defendant.
must
where
Thus,
establish
the
to
"that
alleged
this
common
Supp.
597
Winston fails
of
Anderson
bases
to
However,
undisputed
possessed
the
Winston's
tooth
professional
extraction
matters
v.
proper
the
Winston's
437
F.
requirement.
proper
facts
Winston
instances'
fall
within
Parker,
441
claim
medical
establish
and
extraction.
extent
that
475
S.E.2d at
on
a
F.
3).
and
2d
fails
to
to
Accordingly,
that
SISI
Dr.
the
reference
to
Supp. 2d at 597
563
fall
the
(E.D.
within
VMMA's
Winston's
11
and
1-2.)
Anderson
to
perform
1-2,
6.)
Anderson's
tooth,
the
treatment,
post-extraction
557,
Dr.
Aff.
extract
only by
475 F.
Supp.
exception
the
to
theory
(Compl.
challenges
Winston
the
credentials
qualifications
(Anderson
judgment
resolved
Parker,
claim
knowledge
negligence
negligence
licensure
medical
"%can be
Cho,
^are
perform the tooth extraction.
procedure,
testimony.'"
those
and experience."
his
lacked
qualifications
to
Complaint,
to do so.
Dr.
Moreover,
his
of
one
medical
knowledge
Winston
the
is
of
(quoting Beverly Enter.-Va.,
First,
that
case
acts
factfinder's
2d at
avoid dismissal
such
expert
opinion
(quoting Callahan
Va.
2006)).
Thus,
the
limited
common
expert
failure
certification
to
obtain
the
requisite
expert
certificate
of
merit
is
fatal
to
his
claim.
Id.4
VI.
CONCLUSION
Based on the foregoing, the Defendant's Motion for Summary
Judgment
(ECF No. 31)
will be granted.
dismissed with prejudice.
Even
assuming
Winston's claim will be
The action will be dismissed.
inapplicability
of
the
VMMA's
expert
certification requirement, Defendant remains entitled to summary
judgment.
Under Virginia law, "a plaintiff must establish not
only that a defendant violated the applicable standard of care,
and therefore was negligent, the plaintiff must also sustain the
burden
of showing
that the negligent
acts
constituted a
proximate cause of the injury or death"
Sanchez-Angeles v.
United States, No. 7:07-cv-00596, 2008 WL 2704309, at *6 (W.D.
Va. July 10, 2008) (quoting Bryan v. Burt, 486. S.E.2d 536, 539-
40 (Va. 1997)).
Additionally, "'expert testimony is ordinarily
necessary to establish the appropriate
establish a deviation from the standard,
standard of care, to
and to establish that
such deviation was the proximate cause of the claimed damages."
Id. (quoting Raines v. Lutz, 341 S.E.2d 194, 196 (Va. 1986)).
The
exception,
again,
"exist[s]
only
in
"those rare
cases
in
which a health care provider's act or omission is clearly
negligent within the common knowledge of laymen.'" Id. (quoting
Raines, 341 S.E.2d at 196 n.2).
As previously discussed,
Winston has failed to provide necessary expert testimony.
Moreover, Winston questions the professional medical judgment of
Dr.
Anderson,
a
matter
that
knowledge of a factfinder.
Sanchez-Angeles, 2008 WL
lacks
fails
to
fall
within
the
common
See Parker, 475 F. Supp. 2d at 598;
2704309, at *6.
Without expert
testimony,
Winston
negligence
injuries.
or establish proximate causation of his
See Parker, 475 F. Supp. 2d at 599.
Thus,
the
ability
to
adduce
judgment is appropriately granted for the Defendant.
12
evidence
of
alleged
summary
The Clerk of the Court is directed to send a copy of this
Memorandum Opinion to Winston and counsel for the United States.
An appropriate Order shall issue.
/s/
Robert E.
Payne
£/-/>
Senior United States District Judge
Richmond, Virginia
Date: ^v^^
13
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