Sitts v. U.S.

• Decision Date: 02 February 1987
• Docket Number: No. 155,D,155
• Citation: 811 F.2d 736
• Parties: Kenneth E. SITTS, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee. ocket 86-6110.
• Court: U.S. Court of Appeals — Second Circuit

Page 736

811 F.2d 736

7 Fed.R.Serv.3d 243

Kenneth E. SITTS, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.

No. 155, Docket 86-6110.

United States Court of Appeals, Second Circuit.

Submitted Oct. 2, 1986.

Decided Feb. 2, 1987.

Hancock & Estabrook, Syracuse, N.Y. (Janet D. Callahan, Syracuse, N.Y., of counsel), for plaintiff-appellant.

Frederick J. Scullin, Jr., U.S. Atty. for N.D.N.Y. (Paula Ryan Conan, Asst. U.S. Atty., Syracuse, N.Y., of counsel), for defendant-appellee.

Before KAUFMAN, KEARSE and ALTIMARI, Circuit Judges.

KEARSE, Circuit Judge:

Plaintiff Kenneth E. Sitts appeals from a final judgment entered in the United States District Court for the Northern District of New York, Howard G. Munson, Chief Judge, summarily dismissing his medical malpractice claim against defendant United States of America, brought under the Federal Tort Claims Act, 28 U.S.C. Secs. 1346(b), 2671 et seq. (1982), for damages allegedly resulting from a spinal operation he underwent at a Veterans Administration ("VA") Hospital in 1978. The district court granted defendant's motion for summary judgment on the ground that under New York law, which the parties agree is the applicable substantive law, Sitts would be required to introduce at trial expert medical testimony on the issues of negligence and causation and that Sitts had failed to identify any such expert who would testify for him at trial. On appeal, Sitts argues principally that expert testimony was not required in his case because the questions to be decided are within the ordinary experience and knowledge of lay persons and that, in any event, defendant's motion for summary judgment was not adequately supported and revealed the existence of issues of fact to be tried. Finding no merit in these contentions, we affirm.

I. BACKGROUND

A. The Events

Most of the pertinent historical facts, relating to spinal surgery undergone by Sitts at a VA Hospital in Syracuse, New York ("Hospital") in 1978, are not in dispute and may be summarized briefly. For some time prior to 1978, Sitts had experienced pain in his lower back and left leg, and had consulted doctors at the Hospital. After bed rest and medication failed to alleviate his symptoms, X-rays and a myelogram were taken and Sitts was diagnosed as having a bulging or herniated disk between the last lumbar vertebra (called "L5" in medical terminology) and the first sacral vertebra (called "S1").

The VA physicians advised a laminectomy to remove the bulging material from the "L5-S1 interspace," and Sitts underwent surgery in November 1978. As performed, however, the surgery removed material from between the first two sacral vertebrae (S1 and S2), and not between L5 and S1. Following the operation, when Sitts' pre-operation symptoms persisted, X-rays and a second myelogram disclosed that the laminectomy had been performed at the wrong site. In October 1979, Sitts underwent a second operation which resulted in the removal of the bulging material at the L5-S1 interspace.

B. The Present Lawsuit

In August 1980, having first pursued his administrative remedies as required by 28 U.S.C. Sec. 2675, Sitts commenced the present action, alleging that the first operation was negligently performed, caused a worsening of his back problems, and caused him great pain and suffering. After a period of apparent inaction, there followed pretrial discovery which included document production by both sides, interrogatories to Sitts, and depositions of VA doctors.

Dr. Wayne Eckhart, the orthopedic resident who performed the 1978 operation, testified at his deposition that he had followed the procedure normally used by members of his profession to locate the site of the prescribed laminectomy,i.e., the L5-S1 interspace. As described by Dr. Eckhardt and other orthopedic surgeons whose depositions were taken, the upper end of the human spine normally has five lumbar vertebrae, with adjacent vertebrae separated by cartilage, or disk material, and space; these vertebrae can be manipulated up and down individually in relation to one another in a pistoning-type movement. Below the lumbar vertebrae are the sacral vertebrae; the sacral vertebrae are normally fused together into one bone called the sacrum and cannot be individually pistoned. It is rare that there is movability between the sacral vertebrae--a condition called "lumbarization."

The procedure normally used in locating the operative site for a laminectomy was to make incisions exposing the spine, then to grasp vertebrae and use pistoning motions to find the sacrum, ordinarily the place where no further movement is possible; from that place, the surgeon would simply count vertebrae either up (through the lumbar area) or down (through the sacral area) until he reached the desired level. In the 1978 operation on Sitts, Dr. Eckhardt used this procedure to search for the L5-S1 interspace. Finding bulging and soft disk material between the lowest movable vertebra and the highest immobile vertebra, he concluded that he had located the L5-S1 interspace; he removed that material and concluded the operation.

In fact, the X-rays and myelogram taken after the 1978 operation revealed that Sitts's spine had lumbarization between S1 and S2, and the material removed by Dr. Eckhardt came from that level; the bulging disk material at L5-S1 was not removed until the October 1979 operation.

As part of its discovery of Sitts, the United States served interrogatories in 1983 which asked, inter alia, whether Sitts had employed an expert to act on his behalf in any matter pertaining to the present suit. Sitts responded in the negative, "reserv[ing] the right to amend his response to this interrogatory in the event that an expert witness who is expected to testify at trial is subsequently retained." No amendment to this interrogatory answer was ever served.

In November 1985, after having made periodic inquiries as to the progress of the case, the district court issued a scheduling order that required that all remaining pretrial discovery be concluded by March 14, 1986. A pretrial conference was scheduled for April 18, 1986, and the parties were directed to file prior to that conference a stipulation containing, inter alia, "a list of all witnesses who will be called at the trial and a brief summary of the testimony to be given by each witness."

By notice of motion dated March 18, 1986, and returnable on the date of the scheduled pretrial conference, the United States moved for summary judgment dismissing the complaint. The ground of the motion was that New York law requires that, in order to establish a prima facie case of medical malpractice, a plaintiff must produce expert testimony on the issues of negligence and causation, and that Sitts had not identified, formally or informally, any such expert who would testify on his behalf at trial. Sitts opposed the motion by arguing that summary judgment could not be granted on a motion supported solely by an attorney's affidavit, that there plainly existed issues of fact, and that his case was of the type that New York law permits to be tried without expert testimony since, in his view, there could be no question that the performance of an operation at the wrong site constituted negligence.

Sitts also asserted that further discovery in the form of interrogatories or a deposition of Dr. Paul DiMartino--the surgeon who performed the 1979 operation on Sitts--was necessary to permit a fair and just resolution of the case. In reply, defendant's attorney submitted, inter alia, an April 3, 1986 letter addressed to her Upon review of Mr. Kenneth Sitts [sic ] hospital records and x-rays, my opinion is that the surgery performed on 30 November 1978 was done at a level other than indicated by his myelogram. This I feel was performed due to the variation of normal anatomy Mr. Sitts has and is not uncommon.

from Dr. DiMartino which stated, in pertinent part, as follows:

What distresses me is that on various phone conversations from different attorneys, I am attributed to informing Mr. Sitts that the surgery performed was negligent. I deny that allegation.... I have not expressed to him or anyone else that this was negligent.

After hearing oral argument, the court granted the United States' motion for summary judgment, rejecting Sitts's contention that simply because the operation was performed at the wrong level of the spine the question of negligence was within the realm of experience of ordinary citizens:

I do think that this is a case that would need expert medical testimony and, therefore, since the burden is upon the Plaintiff to show that they could make out a prima facie case and they have produced, in my opinion, no evidence whatsoever that the Government was negligent, I am going to grant the motion for summary judgment made by the Government at this time based upon all of the papers that have been filed and the arguments that I have heard today; summary judgment is granted.

The court denied Sitts's request for further delay, stating that Sitts apparently had not diligently pursued Dr. DiMartino, that it did not appear that Dr. DiMartino's testimony would establish Sitts' prima facie case, and that no reason had been offered for Sitts's failure to retain an expert other than Dr. DiMartino.

Judgment was entered dismissing the complaint, and this appeal followed.

II. DISCUSSION

On appeal, Sitts pursues his contentions that his case is one in which expert medical testimony need not be presented and that defendants' moving papers were inadequate to support summary judgment. We find no merit in either argument.

A. The Requirement that Expert Medical Testimony Be Presented

It is well established in New York law that "unless the alleged act of malpractice falls within the competence of a lay jury to evaluate, it is incumbent upon the plaintiff to present expert testimony in support of the allegations to establish a prima facie case of...