S.H. v. United States
| Decision Date | 18 November 2013 |
| Docket Number | No. CIV. S-11-1963 LKK DAD,CIV. S-11-1963 LKK DAD |
| Parties | S.H., a minor, by her guardian ad litem Chantal Holt, WILLIAM KENNETH HOLT and CHANTAL HOLT, Plaintiffs, v. UNITED STATES OF AMERICA, Defendant. |
| Court | U.S. District Court — Eastern District of California |
Plaintiff S.H. (through her Guardian ad Litem), is a minor child living with "severe and permanent brain damage, neurological impairment and other injuries." First Amended Complaint ("Complaint") (ECF No. 6) 1 2. Plaintiffs - S.H. and her parents, William Kenneth Holt and Chantal Holt - allege that S.H.'s injuries are the result of negligent medical care and advice given her mother by medical personnel at Travis Air Force Base ("Travis" or "Travis AFB") and Edwards AFB. Complaint 11 8-11.
Plaintiffs are suing the United States for the negligence ofthe Travis and Edwards medical personnel, and the resulting injuries to S.H., under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 1346(b), which waives the government's sovereign immunity for tort claims. The government moves for summary judgment, on two grounds. First, it asserts that the claim arose in Spain, and therefore is not subject to the FTCA's waiver of sovereign immunity, citing the "foreign claim" exception of 28 U.S.C. § 2680(k). Second, the government asserts that plaintiffs cannot show the causation necessary to prove their tort claim.
After plaintiff Chantal Holt delivered her first child prematurely at Travis AFB, the medical personnel there "negligently failed to inform" her "of her need for specialized care and treatment in the event of a future pregnancy," failed to advise her of "her continuing vulnerability to and likelihood of uterine irritability/pre-term labor injury with consequent premature birth during subsequent pregnancies," and failed "to include her in the Air Force Exceptional Family Program." Complaint ¶ 8.1 Ms. Holt's second child was also born prematurely. Complaint ¶ 9.
Ms. Holt's pregnancy with S.H., her third child, was confirmed by medical personnel at Edwards AFB on November 2, 2004. Id. Despite Ms. Holt's two prior premature births, Edwards medical personnel again negligently failed to advise,treat and prepare her for this pregnancy (as set forth above), even though she was at high risk for yet another premature birth. Id.
Unlike her earlier pregnancies, plaintiff was pregnant with this third child at a time when her husband was being transferred to duty in Spain, and she was considering moving there with him while still pregnant. See Defendant's Separate Statement of Material Facts ("Material Facts") (ECF No. 34-2) ¶¶ 1-6, 9. Plaintiffs accordingly allege that Edwards personnel engaged in additional negligence by "permitting" her to be deployed overseas, referring her to an overseas medical facility that was "not competent to handle high risk pregnancies" while misrepresenting the facility's capabilities, failing to institute "Overseas Travel Screening procedures," failing to refer her for "High Risk OB Care," and failing to employ appropriate diagnostics, procedures, treatments, referrals and medications to deal with a premature birth, or to prevent the birth from being premature. Complaint ¶ 10.
Ms. Holt gave birth to S.H., prematurely and by C-section, in Spain. Material Facts ¶¶ 9 & 11. Plaintiffs suffered injuries arising from the premature birth, and the failure of Travis and Edwards personnel to properly treat, medicate, prepare and warn Ms. Holt regarding the risks attendant to her pregnancy with S.H., as alleged above. Complaint ¶¶ 8-10, 12, 14 & 16.
Summary judgment is appropriate "if the movant shows that 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); Ricci v. DeStefano, 557 U.S. 557, 586 (2009) (); Walls v. Central Contra Costa Transit Authority, 653 F.3d 963, 966 (9th Cir. 2011) (per curiam) (same).
Consequently, "[s]ummary judgment must be denied" if the court "determines that a 'genuine dispute as to [a] material fact' precludes immediate entry of judgment as a matter of law." Ortiz v. Jordan, 562 U.S. _, 131 S. Ct. 884, 891 (2011), quoting Fed. R. Civ. P. 56(a); Comite de Jornaleros de Redondo Beach v. City of Redondo Beach, 657 F.3d 936, 942 (9th Cir. 2011) (en banc) (same), cert. denied, 132 S. Ct. 1566 (2012).
Under summary judgment practice, the moving party bears the initial responsibility of informing the district court of the basis for its motion, and "citing to particular parts of the materials in the record," Fed. R. Civ. P. 56(c)(1)(A), that show "that a fact cannot be ... disputed." Fed. R. Civ. P. 56(c)(1); Nursing Home Pension Fund, Local 144 v. Oracle Corp. (In re Oracle Corp. Securities Litigation), 627 F.3d 376, 387 (9th Cir. 2010) () (citing Celotex v. Catrett, 477 U.S. 317, 323 (1986)).
A wrinkle arises when the non-moving party will bear the burden of proof at trial. In that case, "the moving party need only prove that there is an absence of evidence to support the non-moving party's case." Oracle Corp., 627 F.3d at 387.
If the moving party meets its initial responsibility, theburden then shifts to the non-moving party to establish the existence of a genuine issue of material fact. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986); Oracle Corp., 627 F.3d at 387 (). In doing so, the non-moving party may not rely upon the denials of its pleadings, but must tender evidence of specific facts in the form of affidavits and/or other admissible materials in support of its contention that the dispute exists. Fed. R. Civ. P. 56(c)(1)(A).
"In evaluating the evidence to determine whether there is a genuine issue of fact," the court draws "all reasonable inferences supported by the evidence in favor of the non-moving party." Walls, 653 F.3d at 966. Because the court only considers inferences "supported by the evidence," it is the non-moving party's obligation to produce a factual predicate as a basis for such inferences. See Richards v. Nielsen Freight Lines, 810 F.2d 898, 902 (9th Cir. 1987). The opposing party Matsushita, 475 U.S. at 586-87 (citations omitted).
The government moves to exclude all testimony and opinions of four of plaintiffs' experts - Drs. Thorp, Schuler, Meis and Null - pursuant to Fed. R. Civ. P. 37(c)(1) & (d). ECF No. 35.
On February 11, 2013, plaintiffs filed their expert disclosures, naming nine (9) experts, along with their expert reports and curricula vitae ("CV's"). Declaration of Martin M. Berman, dated August 26, 2013 ("Berman Decl.") (ECF No. 37-1) ¶ 6 & Exh. 6 (ECF No. 37-7). The court notes that plaintiffs filed these expert reports three months early, as they were not required to file them until June 2014, according to the Pretrial Order (see ECF No. 24). Nevertheless, having received the reports early, the government was free as of that date - February 11, 2013 - to notice the depositions of the designated experts at any time. Fed. R. Civ. P. 26(b)(4)(A) (). Indeed, plaintiffs assert that they verbally offered to make the experts available for depositions at that time, but that the government demurred, preferring "to defer their depositions until Spring." Berman Decl. ¶ 7. As the government correctly notes however, it did not know which of plaintiffs' nine disclosed experts would actually be called to testify.
On June 3, 2013, plaintiffs filed their (final) designation of experts, as required by the Pretrial Order. ECF No. 30 ("Plaintiffs' Final List of Experts To Be Presented At Trial"). This designation again identified the nine (9) experts previously disclosed on February 11. Id. The government however, still did not seek to depose plaintiffs' experts. Instead, it waited more than five (5) additional weeks, with the discovery deadline closing in, before serving notice that it wished to depose four of the experts.
On July 10, 2013 - five business days before the discovery cut-off date - the government finally served notice that it wished to depose four of plaintiffs' designated experts. Berman Decl. ¶ 15. Even though the government knew that the four experts "were located across the country, and spread out from New Mexico to North Carolina," it gave plaintiffs two (2) business days' notice for two expert depositions to be taken on July 15, 2013 in Sacramento, CA. See Declaration of Gregory T. Broderick dated August 12, 2013 ("Broderick Decl.") (ECF No. 35-1) ¶¶ 3 & 4, & Exh. 2. At the same time, it provided four (4) business days' notice for the two remaining expert depositions to be taken on July 17, 2013 in Sacramento. Broderick Decl. Exh. 2. To ameliorate the admittedly "inconvenient" timing, the notice states that the experts can appear in their local U.S. Attorneys' offices by video-conferencing. See id.
In e-mail communications regarding the timing of the depositions, the government was clear that in its view, "it would be better for all involved" if, "due to the looming dates," plaintiffs would agree to have the depositions occur "later in July." Berman Decl. Exh. 14 (ECF No. (37-15). At no...
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