Puckett v. United States

1 WO [5] 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA [8] 9 Jimmy D Puckett, No. CV-21-01453-PHX-SMB 10 Plaintiff, ORDER 11 v. 12 United States of America, 13 Defendant. [14] 15 Pending before the Court is Defendant’s Motion for Summary Judgment (Doc. 55). 16 Defendant also filed the required statement of facts (Doc. 56), to which Plaintiff filed a 17 response (Doc. 61) and his controverting statement of facts (Doc. 62). Defendant replied 18 (Doc. 65). After reviewing the parties’ arguments and the relevant case law, the Court will 19 grant Defendant’s Motion. 20 I. BACKGROUND 21 This is a medical malpractice case arising from Plaintiff’s care at the Southern 22 Arizona Veterans’ Administration Health Care Center (“the Yuma VA”). Throughout the 23 course of his care at the Yuma VA, Plaintiff saw Dr. Gilbert in person on five occasions. 24 (Doc. 55 at 3.) Plaintiff also had two telephonic conferences with Dr. Gilbert. (Id.) 25 Plaintiff first visited the Yuma VA on February 25, 2013. (Doc. 56-2 at 144–45.) At this 26 visit, Plaintiff complained of joint pain, erectile dysfunction, and blurry vision. (Id. at 143– 27 44.) Dr. Gilbert examined Plaintiff and noted that he had Chronic Obstructive Pulmonary 28 Disease (“COPD”), allergic rhinitis, hyperlipidemia, allergies, and degenerative joint 1 disorder (“DJD”). (Id. at 144.) On March 21, 2013, Dr. Gilbert called Plaintiff to inform 2 him of his lab results. (Id. at 138.) Plaintiff did not complain of any additional symptoms 3 on this phone call. (Id.) On July 23, 2013, Plaintiff visited the Yuma VA complaining of 4 toe pain. (Id. at 133–34.) Dr. Gilbert noted that Plaintiff previously had a surgical avulsion 5 of the nail on the subject toe. (Id. at 129–30.) Additionally, Plaintiff requested to see a 6 podiatrist in Tucson, and in response Dr. Gilbert entered the consult. (Id. at 127–29.) 7 Plaintiff next visited the Yuma VA on October 31, 2013 for a routine follow up. (Id. at 8 123–27.) At this visit, Dr. Gilbert reviewed Plaintiff’s symptoms for his other conditions 9 and conducted another physical examination. (Id.) 10 On March 20, 2014, Plaintiff had another visit. (Id. at 114–20.) Plaintiff reported 11 that a nurse practitioner at a CVS clinic prescribed him antibiotics for a sinus infection, but 12 that his symptoms were not improving. (Id.) Dr. Gilbert ordered a CT scan to rule out any 13 physical abnormalities. (Id. at 111.) On April 17, 2014, Dr. Gilbert called Plaintiff to 14 inform him that the CT scan results were normal and that she placed a consult request for 15 him to see an ENT. (Id. at 108.) Plaintiff’s final visit occurred on July 31, 2014. (Id. at 16 101–08.) Plaintiff now reported that he had been experiencing left shoulder pain since 17 2003. (Id.) Based on the length of time and the complaint that the pain worsened when he 18 used the shoulder, Dr. Gilbert considered this pain consistent with DJD. (Doc. 62-6 at 19 104.) Plaintiff also complained of his recurring headaches and reported that his COPD was 20 worsening. (Doc. 56-2 at 101.) Dr. Gilbert ordered an MRI to rule out any structural 21 abnormalities that may be causing the headaches. (Id. at 103.) For the COPD, Dr. Gilbert 22 ordered a chest x-ray and switched Plaintiff’s inhalers. (Id.) 23 Two days after this appointment, Plaintiff suffered a heart attack. (Doc. 55 at 7.) 24 He was transported to Yuma Regional Medical Center (“YRMC”) by ambulance. (Id.) In 25 the ambulance, he had two EKGs, both of which showed normal sinus rhythms. (Doc. 5626 4 at 12–13.) At YRMC, Plaintiff underwent an angioplasty and received two stents. (Id.) 27 After the surgery, he was moved to the intensive care unit, where a YRMC physician placed 28 a central line into Plaintiff’s femoral artery instead of his femoral vein. (Id.) This caused 1 gangrene in the leg, which in turn required the leg to be amputated. (Id.) That injury was 2 the subject of a different, previously settled lawsuit with YRMC and the YRMC physicians. 3 Plaintiff now alleges that Dr. Gilbert breached the standard of care by failing to 4 recognize that his symptoms showed coronary artery disease. (Doc. 1 at 4–6.) Plaintiff 5 asserts that based on his reported symptoms, Dr. Gilbert should have recognized that he 6 was at risk of a heart attack and ordered an electrocardiogram (“EKG”), ordered other 7 cardiac tests, or referred him to a cardiologist. (Id.) 8 Plaintiff initially submitted an administrative claim, consistent with the Federal Tort 9 Claims Act (“FTCA”). (Id. at 2.) On September 6, 2016, that claim was denied. (Id. at 10 3.) Plaintiff then sought reconsideration of that decision. (Id.) The VA’s reconsideration 11 process did not change their decision, and it conveyed a final denial to Plaintiff. (Id.) 12 Plaintiff now brings his single claim of medical negligence in federal court as permitted by [13] 28 U.S.C. § 2675 (a). (Id. at 7.) 14 II. LEGAL STANDARD 15 Summary judgment is appropriate in circumstances where “there is no genuine 16 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” 17 Fed. R. Civ. P. 56(a). Material facts are those that may affect the outcome of a case under 18 the applicable substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 19 Factual disputes are genuine when the evidence could allow a reasonable jury to find in 20 favor of the nonmoving party. Id. “A party asserting that a fact cannot be or is genuinely 21 disputed must support the assertion by . . . citing to particular parts of materials in the 22 record” or by “showing that an adverse party cannot produce admissible evidence to 23 support the fact.” Fed. R. Civ. P. 56(c)(1)(A)–(B). Additionally, the Court may enter 24 summary judgment “against a party who fails to make a showing sufficient to establish the 25 existence of an element essential to that party’s case, and on which that party will bear the 26 burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). 27 When considering a motion for summary judgment, a court must view the evidence 28 in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith 1 Radio Corp., 475 U.S. 574, 587 (1986). The Court must draw all reasonable inferences in 2 the nonmovant’s favor. Anderson, 477 U.S. at 255 . Additionally, the Court does not make 3 credibility determinations or weigh the evidence. Id. at 253 . The determination of whether 4 a given factual dispute requires submission to a jury is guided by the substantive 5 evidentiary standards that apply to the case. Id. at 255 . 6 The burden initially falls with the movant to demonstrate the basis for a motion for 7 summary judgment, and they must identify “those portions of [the record] which it believes 8 demonstrate the absence of a genuine issue of material fact.” Celotex Corp., 477 U.S. at 9 323. If this initial burden is not met, the nonmovant does not need to produce anything. 10 Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099 , 1102–03 (9th Cir. 2000). 11 However, if the initial burden is met by the movant, then the nonmovant has a burden to 12 establish that there is a genuine issue of material fact. Id. at 1103. The nonmovant “must 13 do more than simply show that there is some metaphysical doubt as to the material facts.” 14 Zenith Radio Corp., 475 U.S. at 586 . Bare assertions alone do not create a material issue 15 of fact, and “[i]f the evidence is merely colorable, or is not significantly probative, 16 summary judgment may be granted.” Liberty Lobby, 477 U.S. at 247–50 (citations 17 omitted). 18 Moreover, under FTCA, a Plaintiff may sue the United States for personal injury 19 claims caused by: “[T]he negligent or wrongful act or omission of any employee of the [20] Government while acting within the scope of his office or employment, 21 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 [22] or omission occurred.” [23] 28 U.S.C. § 1346 (b)(1). The alleged negligence occurred in Arizona. Therefore, Arizona [24] law provides the applicable standard of negligence. See id.; Massachusetts Bonding & Ins. [25] Co. v. United States, 352 U.S. 128, 129 (1956). [26] To establish liability for medical malpractice in Arizona, a plaintiff must prove that [27] (1) the health provider in question “failed to exercise that degree of care, skill and learning [28] expected of a reasonable, prudent health care provider in the profession or class to which 1 he belongs within the state acting in the same or similar circumstances” and (2) that the 2 failure “was a proximate cause of the injury.” Ariz. Rev. Stat. § 12-563 . Generally, the 3 standard of care is established by expert medical testimony. Seisinger v. Siebel, 203 P.3d 4 483, 492 (Ariz. 2009). 5 “Causation is generally a question of fact for the jury unless reasonable persons 6 could not conclude that a plaintiff had proved this element.” Barrett v. Harris, 207 Ariz. 7 86 P.3d 954, 958 (Ariz. Ct. App. 2004). To prove causation, a plaintiff must show “a 8 natural and continuous sequence of events stemming from the defendant's act or omission, 9 unbroken by any efficient intervening cause, that produce[d] an injury, in whole or in part, 10 and without which the injury would not have occurred.” Sampson v. Surgery Center of 11 Peoria, LLC, 491 P.3d 1115 , 1118 (Ariz. 2021) (quoting Barrett, 86 P.3d at 958 ). 12 Furthermore, the injury must be “probable, not merely speculative.” Id. 13 III. DISCUSSION 14 A. Local Rules Violations 15 The Local Rules require both parties to file separate statements of facts when 16 briefing summary judgment. LRCiv 56.1. The moving party is required to set forth each 17 material fact in a separately numbered paragraph that refers to a “specific admissible 18 portion of the record where the fact finds support.” LRCiv 56.1(a). The opposing party 19 must file a controverting statement of facts that (1) responds to each paragraph of the 20 moving party’s statement of facts, indicating whether the opposing party disputes the facts 21 set forth, and (2) provides any additional facts that rase a genuine issue of fact or preclude 22 summary judgment. LRCiv 56.1(b). The Court also instructed the parties to review 23 Hunton v. Am. Zurich Ins. Co., No. 16-00539, 2018 WL 1182552 (D. Ariz. Mar. 7, 2018) 24 before briefing summary judgment. (Doc. 17 at 4.) 25 Hunton addresses Local Rule 56.1, noting that the rule “imposes specific 26 requirements on the form and content of summary judgment with the goal of simplifying 27 the process.” 2018 WL 1182552 , at *2. Specifically, the Hunton court remarked that the 28 rule “requires the controverting party to provide a specific record reference supporting the 1 party’s position if a fact is disputed; it does not permit explanation and argument supporting 2 the party’s position to be included in the response to the moving party’s statement of facts.” [3] Id. (quoting Pruett v. Arizona, 606 F. Supp. 2d 1065, 1075 (D. Ariz. 2009)). Therefore, 4 Plaintiff violated LRCiv 56.1(b) by providing commentary beyond merely admitting or 5 denying factual assertions along with objections in their controverting statement of facts. 6 (Doc. 550 at 3–4.) Ultimately, this hinders the effective resolution of Defendant’s Motion. 7 Additionally, the Court retains discretion to decline to consider anything 8 “additional” in a statement of facts. See Hunton, 2018 WL 1182552 , at *3 (noting that the 9 Court may disregard everything but the word “admitted” or “disputed” and the 10 corresponding references to the record, along with any improperly disputed facts). The 11 Court will exercise such discretion here. Plaintiff repeatedly includes expositional facts 12 and explanation in his controverting statement of facts. But explanation and argument 13 belong in the responsive motion, not in the statement of facts. If Plaintiff believes that 14 information beyond a simple admit or deny is in order, he must admit the assertion and 15 include additional material information in a separately numbered paragraph. See LRCiv 16 56.1(b); Hunton, 2018 WL 1182552 at *3. Therefore, every explanation or argument 17 supporting Plaintiff’s position inserted after a “disputed” or “undisputed” response will not 18 be considered. See Hunton, 2018 WL 1182552 , at *2. 19 Furthermore, the Court will not consider the arguments made in Plaintiff’s statement 20 of facts. The Local Rules require parties to list their objections “summarily without 21 argument.” LRCiv 7.2(m)(2). Plaintiff instead incorporated his objections into his 22 contravening statement of facts. Accordingly, these arguments will also not be considered. 23 See Am. Express Co. v. Ponnambalam, No. CV-18-03237-PHX-SMM, 2020 WL 24 13442489, at *4 (D. Ariz. Apr. 7, 2020). The Court also notes that it instructed parties to 25 limit their required statements of facts to ten pages, exclusive of exhibits. (Doc. 17 at 4.) 26 Defendant’s statement of facts is twelve pages (Doc. 56), while Plaintiff’s is twenty-nine 27 pages (Doc. 62). 28 The Court does not condone parties ignoring page limitations and placing arguments 1 within a separate statement of facts. The Court reminds the parties to diligently follow the 2 local rules of this District. 3 B. Causation 4 As stated above, the Court may enter summary judgment “against a party who fails 5 to make a showing sufficient to establish the existence of an element essential to that 6 party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp., 7 477 U.S. at 322. Defendant primarily argues that Arizona law requires competent 8 testimony from causation experts in medical malpractice cases and that here, Plaintiff’s 9 expert failed to meet this standard. (Doc. 55 at 9–10.) Specifically, Defendant argues that 10 because Dr. Vega’s opinion does not sufficiently show causation it cannot survive 11 summary judgment. (Id. at 12–13.) Defendant argues that his report does not sufficiently 12 “connect the dots” between the failure to meet the standard of care and the cause of 13 Plaintiff’s injuries, thereby leaving the jury to speculate as to the issues regarding 14 causation. (Id. at 13.) Ultimately, Defendant contends that because Plaintiff cannot show 15 causation, he has not presented a prima facie case of medical negligence. (Id. at 16.) 16 Plaintiff counters that Dr. Vega’s report shows that Dr. Gilbert’s alleged negligence 17 increased the risk of injury, and that the step from increased risk to causation is for the jury 18 to determine. (Doc. 61 at 8.) Plaintiff also argues that Dr. Vega did not equivocate in his 19 assessment and was clear that Dr. Gilbert’s negligence led to Plaintiff’s heart attack. (Id.at 20 11–12.) Specifically, Plaintiff argues that the use of the word “could” in Dr. Vega’s 21 opinion does not undercut his conclusion that Dr. Gilbert’s actions were the proximate 22 cause of Plaintiff’s injury. (Id. at 13.) Lastly, Plaintiff contends that Dr. Vega’s opinion 23 is not even necessary because causation will be readily apparent to the jury via other 24 evidence. (Id. at 15–16.) To support this, Plaintiff points to the medical records, arguing 25 that they show the symptoms of an imminent cardiac event that a jury could understand. 26 (Id. at 16.)1 [27] 1 The parties also trade arguments on Dr. Vega’s qualifications to provide expert testimony. 28 However, the proper avenue for that argument is a Daubert motion. Because those arguments are not dispositive as to causation, the Court will not address them. 1 Arizona law requires a causation showing in medical negligence actions. Ariz. Rev. 2 Stat. § 12-563(2). Further, the plaintiff carries the burden of proof on causation. See 3 Bekendorf v. Advanced Cardiac Specialists Chartered, 269 P.3d 704, 707 (Ariz. Ct. App. 4 2012). To prove causation, a plaintiff must show “a natural and continuous sequence of 5 events stemming from the defendant’s act or omission, unbroken by any efficient 6 intervening cause, that produces an injury, in whole or in part, and without which the injury 7 would not have occurred.” Barrett, 86 P.3d at 954 . “[I]n most instances the applicable 8 standard of care, and the probable consequences of failing to meet that standard, are beyond 9 ordinary lay knowledge.” Sampson, 491 P.3d at 1118; see also Rasor v. Nw. Hosp., LLC, [10] 403 P.3d 572 , 575 (Ariz. 2017). Therefore, “the standard of care normally must be 11 established by expert medical testimony.” Seisinger, 203 P.3d at 483. The only “narrow 12 exception” to this general rule is when causation is “readily apparent” to a lay person. 13 Sampson, 491 P.3d at 1118. 14 In a case where the standard of care is disputed, like it is here, expert guidance is 15 necessary to help lay jurors determine liability. Id. at 1119. To prove causation, experts 16 are utilized to “connect the dots” from a claimed violation of the standard of care to the 17 cause of the injury. Id. at 1120. Lastly, the plaintiff must show that causation is probable, 18 not merely possible or speculative. Id. at 1118; Robertson v. Sixpence Inns of Am., Inc., [19] 789 P.2d 1040, 1047 (Ariz. 1990); Kreisman v. Thomas, 469 P.2d 107, 110 (1970); 20 Bekendorf, 269 P.3d at 706 (Ariz. Ct. App. 2012). Therefore, expert medical testimony 21 that a subsequent illness or disease “could” or “may” have been the cause of the injury is 22 generally insufficient unless there is “sufficient additional evidence indicating the specific 23 causal relationship.” Id. 24 The Court agrees that Dr. Vega has failed to connect the dots from the initial alleged 25 negligence to Plaintiff’s heart attack. To begin, Dr. Vega’s report includes the following 26 two opinions: “Dr. Lisa Gilbert failed to meet the standard of care for a reasonable family [27] physician in failing to recognize the symptoms of coronary artery disease 28 evident in Mr. Jimmy Puckett from 2013 to 2014. Her failure to act on these 1 symptoms with further testing and/or referral were also below the standard of care. [2] 3 Dr. Gilbert failed to record Mr. Puckett’s history in the medical record, which is also below the standard of care.” [4] (Doc. 56-4 at 47.) Notably, neither of these opinions reference causation in any [5] way. Instead, they provide opinions regarding the relevant standard of care. Knowing that [6] he cannot rely on either of these opinions for causation, Plaintiff instead relies on a later [7] statement that is not even in Dr. Vega’s section on opinions. On the next page, Dr. Vega’s [8] report states: “I am certain that this outcome could have been avoided with the right [9] diagnostic workup and the combination of invasive interventions, such as coronary [10] angioplasty or surgery, and medications such as high-intensity statins and antiplatelet [11] drugs.” (Doc. 56-4 at 48.) But even this statement—which again is not an opinion— [12] merely alludes to causation. It uses the speculative qualifier of “could.” Moreover, the [13] statement only advances a mere possibility that if Dr. Gilbert had taken different actions, [14] Plaintiff’s heart attack could have been avoided. This is not a conclusion, but rather an [15] invitation for a jury to speculate on what caused Plaintiff’s injury. As discussed, Arizona [16] law requires more than the possibility that the act or omission merely could have led to the [17] injury. [18] Nonetheless, Plaintiff attempts to transform this statement into a causation opinion. [19] That is impermissible. Yet even if taken at face value, the statement does not provide any [20] clarity on causation. Specifically, Dr. Vega believes Dr. Gilbert should have immediately [21] ordered an EKG and cardiac stress test. (Id. at 47.) But he does not provide any follow up [22] on that speculation. For instance, what if Dr. Gilbert had performed an EKG, but results [23] came back normal? This was certainly possible, given the fact that Plaintiff’s two EKGs [24] performed on the day of his heart attack revealed normal sinus rhythms. (Id. at 12–13.) [25] Dr. Vega also does not explain the “diagnostic workup” or “invasive interventions” he [26] thinks Dr. Gilbert should have performed, or their success rates. Lastly, even if Dr. Gilbert [27] referred Plaintiff to a cardiologist, there is no indication on what tests or interventions the [28] cardiologist would normally undertake, or what their effect would be. These unanswered 1 questions leave the jury to speculate, which is impermissible under Arizona law. 2 Moreover, they fail to show a natural and continuous sequence of events stemming from 3 Dr. Gilbert’s alleged failure to act and therefore do not show proximate cause. 4 Plaintiff attempts to distinguish Sampson. The expert in Sampson equivocated on 5 the standard of care, which created “speculation built upon inference.” 491 P.3d at 1118. 6 Here, Plaintiff argues that Dr. Vega was “certain” Plaintiff could have avoided his heart 7 attack if Dr. Gilbert had met the standard of care, and therefore no speculation is required. 8 (Doc. 61 at 12.) Plaintiff also notes that an expert does not need to provide an opinion that 9 declares one hundred percent certainty. (Id. at 15.) That is true. But Sampson requires 10 more than a mere possibility that a different course of action would have resulted in a 11 different outcome. The opinion must show the natural and continuous sequence of events 12 that “connect the dots” between the alleged act or omission and the injury. Sampson, 491 13 P.3d at 1118–20. As noted above, Dr. Vega’s report does not sufficiently connect these 14 dots. Instead, it leaves more questions than answers and forces the jury to speculate as to 15 causation. 16 Plaintiff also urges the Court to look to Estate of Reinen v. N. Ariz. Orthopedics, 17 Ltd., 9 P.3d 314 (Ariz. 2000). However, Reinen is procedurally distinguishable. In Reinen, 18 the Arizona Supreme Court reversed a directed verdict that rested on a medical expert’s 19 alleged failure to show proximate cause. Id. at 318 . The expert testified at trial on both 20 the standard of care and causation. Id. at 317 . Further, this testimony was given without 21 any foundational objection at the time. Id. The court specifically focused on this fact. See [22] id. The case here is not before a jury, and Defendants have noted the gaps in Dr. Vega’s 23 testimony at the summary judgment stage. Further, even if Reinen had put forth a clearer 24 standard, Sampson outlines the more recent standard and therefore controls. 25 Lastly, Plaintiff cannot establish causation by inference. The alleged causation in 26 this case would not be obvious to an ordinary lay person. An ordinary juror will not have 27 knowledge of the standard of care of a general medical practitioner or the probable 28 consequences of failing to meet that standard. Sampson, 491 P.3d at 1118. Therefore, any 1 |] causation would not be readily apparent to a jury. They would understandably require || expert medical testimony to establish, and understand, the standard of care. Seisinger, 203 || P.3d at 483. Accordingly, the Court finds that Plaintiff fails to establish causation by 4|| inference. 5 In sum, causation 1s a required element, and Plaintiff has failed to make a sufficient 6 || showing on that element. See Celotex, 477 U.S. at 322-23 . Accordingly, the Court will || grant Defendant’s Motion. IV. CONCLUSION 9 For the reasons stated above, 10 IT IS HEREBY ORDERED granting Defendant’s Motion for Summary 11 || Judgment (Doc. 55). 12 IT IS FURTHER ORDERED directing the Clerk of Court to enter judgment 13 || consistent with this Order and terminate this case. 14 Dated this 5th day of December, 2023. 15 _ 16 yeas > SO fonorable Susan M. Brnovich = 18 United States District Judge [28] -ll-