Morrissey v. Mantica
| Decision Date | 06 October 2008 |
| Docket Number | Civil Action No. 06-11761-RBC. |
| Citation | 581 F.Supp.2d 229 |
| Parties | Charlene MORRISSEY, Plaintiff, v. Elizabeth MANTICA, R.N., Defendant. |
| Court | U.S. District Court — District of Massachusetts |
Kenneth M. Levine, Law Office of Kenneth Levine, Brookline, MA, Sheila Mone, Kenneth M. Levine & Associates, Boston, MA, for Plaintiff.
Debra I. Lerner, Michael J. Mazurczak, Melick, Porter, & Shea LLP, Boston, MA, for Defendant.
MEMORANDUM AND ORDER ON DEFENDANT ELIZABETH MANTICA'S MOTION FOR SUMMARY JUDGMENT (# 41)
On September 28, 2006, plaintiff Charlene Morrissey ("Morrissey" or "the plaintiff") filed a complaint (# 1) against defendant Elizabeth Mantica, R.N. ("Mantica" or "the defendant")1. On December 28 2006, Mantica filed an answer (# 10) to the complaint.
On January 24, 2007, the parties filed a joint motion for referral to a medical tribunal (# 14). The motion was granted (# 16) and on January 25, 2007 the civil case was terminated. The medical tribunal found for Morrissey (# 18), allowing her to move forward with her lawsuit. In consideration of these findings, the Court reopened the civil action on May 18, 2007.
With the parties' consent (# 40) on March 26, 2008, this case was referred and reassigned to the undersigned for all purposes including trial and the entry of judgment pursuant to 28 U.S.C. § 636(c). On March 31, 2008, Mantica filed a motion for summary judgment (# 41) together with a statement of undisputed facts, a memorandum of law and exhibits (# 42). On April 18, 2008, Morrissey filed an opposition to the summary judgment motion with exhibits, including the affidavit of Charlene Morrissey dated April 10, 2008(# 46). With leave of Court, on May 19, 2008, Mantica filed a reply brief in support of her motion for summary judgment (# 47). At this juncture, the motion for summary judgment is poised for decision.
According to the allegations of the complaint, on or about September 30, 2003, the plaintiff submitted herself to the care and treatment of Mantica. Morrissey asserts that during the course of her care and treatment, Mantica treated her in such a way as to cause her severe personal injuries.
It is undisputed that on September 29, 2003, Morrissey underwent a medial unicompartmental knee replacement at Lowell General Hospital ("LGH") under the care of David Morley, M.D. (# 43 at 3, ¶ 2; # 46 at 2, ¶ 2) It is further undisputed that Morrissey received post-operative care at LGH, including the use of a knee immobilizer, a constant passive motion ("CPM") machine, and physical therapy. (# 43 at 3, ¶ 3; # 46 at 2, ¶ 3)
Morrissey alleges that on the morning of September 30, 2003, someone placed her leg into a CPM machine while she was still wearing a knee immobilizer. A CPM machine is used when providing physical therapy to a patient; it "allows the patient's knee to be flexed, extended and held in certain positions for a predetermined number of times per cycle." ) According to Morrissey's doctor who has provided an expert report in this case, the standard of care when using a CPM machine is to ensure that the patient's knee is "unrestricted and moving freely." (# 43, Exh. L at 1-2) As such, the knee immobilizer, which is intended to keep the knee still, should be removed prior to applying a CPM machine to avoid "post-operative stress, [interference] with the healing process, and ... the need for subsequent medical intervention." (# 43, Exh. L at 2) Morrissey alleges that as a result of her leg being put in the CPM machine while her knee was still immobilzed, she has suffered "excessive pain and inflammation," never properly recovered from her original surgery, and required subsequent surgical procedures. (# 43, Exh. E at answer 8)
The purpose of summary judgment "is to pierce the boilerplate of the pleadings and assay the parties' proof in order to determine whether trial is actually required." Rojas-Ithier v. Sociedad Espanola de Auxilio Mutuo y Beneficiencia de Puerto Rico, 394 F.3d 40, 42 (1 Cir., 2005) (quoting Wynne v. Tufts Univ. Sch. of Med., 976 F.2d 791, 794 (1 Cir., 1992), cert. denied, 507 U.S. 1030, 113 S.Ct. 1845, 123 L.Ed.2d 470 (1993)); see also Garside v. Osco Drug, Inc., 895 F.2d 46, 50 (1 Cir., 1990). The party moving for summary judgment bears the initial burden of asserting the absence of a genuine issue of material fact and "support[ing] that assertion by affidavits, admissions, or other materials of evidentiary quality." Mulvihill v. Top-Flite Golf Co., 335 F.3d 15, 19 (1 Cir., 2003); De La Vega v. San Juan Star, Inc., 377 F.3d 111, 115-16 (1 Cir., 2004). "`Once the moving party avers the absence of genuine issues of material fact, the nonmovant must show, through materials of evidentiary quality, that such a dispute exists.'" Cordero-Soto v. Island Finance, Inc., 418 F.3d 114, 119 (1 Cir., 2005) (quoting Rathbun v. Autozone, Inc., 361 F.3d 62, 66 (1 Cir., 2004)); see also Mulvihill, 335 F.3d at 19 (citing Suarez v. Pueblo Int'l, Inc., 229 F.3d 49, 53 (1st Cir.2000)).
When considering whether to grant summary judgment, the Court must determine whether "... the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56©. The Court looks to "the record on summary judgment in the light most favorable to the nonmovant." Hoffman v. Applicators Sales and Service, Inc., 439 F.3d 9, 11 (1 Cir., 2006) (citing Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 50 (1 Cir., 2000)). All reasonable inferences will be drawn in the favor of the nonmoving party. Poulis-Minott v. Smith, 388 F.3d 354, 361 (1 Cir., 2004); see also Alliance of Auto. Mfrs. v. Gwadosky, 430 F.3d 30, 34 (1 Cir., 2005), cert. denied, 547 U.S. 1143, 126 S.Ct. 2034, 164 L.Ed.2d 806 (2006); Santoni v. Potter, 369 F.3d 594, 598 (1 Cir., 2004); Mulvihill, 335 F.3d at 19; Podiatrist Ass'n, Inc. v. La Cruz Azul De Puerto Rico, Inc., 332 F.3d 6, 13 (1 Cir., 2003).
Despite this "notoriously liberal" standard, Mulvihill, 335 F.3d at 19, summary judgment cannot be construed as "a hollow threat". Kearney v. Town of Wareham, 316 F.3d 18, 22 (1 Cir., 2002). A factual dispute which is neither "genuine" nor "material" will not survive a motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "An issue is `genuine' for purposes of summary judgment if `the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Poulis-Minott, 388 F.3d at 362-63 (quoting Hayes v. Douglas Dynamics, Inc., 8 F.3d 88, 90 (1 Cir., 1993), cert. denied, 511 U.S. 1126, 114 S.Ct. 2133, 128 L.Ed.2d 863 (1994)); Rojas-Ithier, 394 F.3d at 42; Calero-Cerezo v. U.S. Dep't of Justice, 355 F.3d 6, 19 (1 Cir., 2004). Mere speculations raised by the nonmoving party that are unsubstantiated will not be sufficient to defeat summary judgment. Nieves-Luciano v. Hernandez-Torres, 397 F.3d 1, 5 (1 Cir., 2005).
In weighing whether a factual dispute is "material," the Court must examine the substantive law of the case because "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248, 106 S.Ct. 2505; De La Vega, 377 F.3d at 115; Rojas-Ithier, 394 F.3d at 42.
The focus at the summary judgment phase "`should be on the ultimate issue: whether, viewing the aggregate package of proof offered by the plaintiff and taking all inferences in the plaintiffs favor, the plaintiff has raised a genuine issue of fact.'" Rivas Rosado v. Radio Shack, Inc., 312 F.3d 532, 535 (1 Cir., 2002) (quoting Dominguez-Cruz v. Suttle Caribe, Inc., 202 F.3d 424, 430-31 (1 Cir., 2000)); see also Nieves-Luciano, 397 F.3d at 4; Rojas-Ithier, 394 F.3d at 42. The party objecting to summary judgment must set forth specific facts proving a genuine issue of material fact in order to "deflect the swing of the summary judgment scythe." Noviello v. City of Boston, 398 F.3d 76, 84 (1 Cir., 2005) (quoting Mulvihill, 335 F.3d at 19). Where "the non-moving party rests `merely upon conclusory allegations, improbable inferences, and unsupported speculation,'" summary judgment will be appropriate. Forestier Fradera v. Municipality of Mayaguez, 440 F.3d 17, 21 (1 Cir., 2006) (). Moreover, the party objecting to summary judgment may not rest "merely on allegations or denials in [their] own pleading." Fed.R.Civ.P. 56(e)(2); Ramirez Rodriguez v. Boehringer Ingelheim Pharmaceuticals, Inc., 425 F.3d 67, 83 (1 Cir., 2005). Instead, Rule 56(c):
mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.
Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
In moving for summary judgment, Mantica claims that she was not and could not have been the person who placed Morrissey's leg into the CPM machine on September 30, 2003. Further, the defendant contends that Morrissey has failed to present any evidence to support her claim that Mantica was in fact the person who placed her leg into the CPM machine. In an affidavit filed with Morrissey's Opposition (# 46) to Mantica's Motion for Summary Judgment (# 41), the plaintiff states that Mantica is the person who placed her leg in the CPM machine on September 30, 2003. )
The plaintiff in a medical malpractice suit bears the burden of proving by a...
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